2. Constitutional Law I Justiciability – Part V (Political Questions) Feb. 3, 2005

3. Spring, 2006Con Law I - Manheim2 Political Questions Marbury: “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” “in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.” True for congress too? Political branch must have both power and discretion

4. Spring, 2006Con Law I - Manheim3 Where Political Questions Arise Foreign Relations: In certain matters the US must speak with a single voice Existence of Hostilities: Finality of decision and certainty required Constitutional Amendments: Need for finality and certainty about status Guaranty clause: Clause commits to political branch any question of enforcement

5. Spring, 2006Con Law I - Manheim4 Baker v. Carr (1962) Claim: Unequal apportionment of Tennessee legisla- ture violated:  Guaranty Clause of Art. IV, § 4 Rejected in Colegrove v. Green (1946) See also Luther v. Borden (1849)  Equal Protection Clause of 14 th Amendment

6. Spring, 2006Con Law I - Manheim5 Baker v. Carr (1962) Political Questions: Textually demonstrable constitutional commit- ment of issue to coordinate political department This is the essential element of the Pol. Qu. doctrine Does the constitution assign to one of the political branches (of the federal government) power to act wrt the issue ? Power alone is insufficient. The branch must have final decision-making authority (i.e., discretion to act)

7. Spring, 2006Con Law I - Manheim6 Baker v. Carr (1962) Political Questions: Textually demonstrable constitutional commit- ment of issue to coordinate political department Lack of judicially discoverable and manageable standards for resolving the issue 2 nd element flows from the 1 st If the const. assigns the issue to a political branch, there is unlikely to be judicially discoverable standards

8. Spring, 2006Con Law I - Manheim7 Baker v. Carr (1962) Political Questions: Textually demonstrable constitutional commit- ment of issue to coordinate political department Lack of judicially discoverable and manageable standards for resolving the issue Impossibility of deciding without initial policy determination clearly for nonjudicial discretion Lack of respect due coordinate branch of gov’t Unusual need for unquestioned adherence to a political decision already made Potential embarrassment from multifarious pronouncements by various departments

9. Spring, 2006Con Law I - Manheim8 Powell v. McCormack (1969) Removing a member of congress Exclusion (Art. I, § 2) “No Person shall be a Representative who shall not have attained to the Age of 25 Years, and been 7 Years a Citizen of the US, and … an Inhabitant of that State..” Expulsion (Art. I, § 5, ¶ 2) Each House may … punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.” Impeachment (Art. II, § 4) “all civil Officers of the United States shall be removed from Office on Impeachment [and] Conviction...” members of congress are not “officers of the US” Powell wasn’t expelled

10. Spring, 2006Con Law I - Manheim9 Powell v. McCormack (1969) Claim: Exclusion from House exceeded grounds specified in Art. I, § 2: “No Person shall be a Represen- tative who shall not have attained to the Age of 25 Years, and been 7 Years a Citizen of the US, and … an Inhabitant of that State …” Defense: Art. I, § 5 commits exclusion to discretion of House “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members”

11. Spring, 2006Con Law I - Manheim10 Powell v. McCormack (1969) Jurisdictional question: political question Whether an issue presents a political question is itself a judicial question Court decides if coordinate branch  Has power to act on the issue  Has discretion to make a final decision on the issue If the answer to both questions is yes, the Court must dismiss (for lack of jurisdiction) If not, the Court can decide the issue

12. Spring, 2006Con Law I - Manheim11 Powell v. McCormack (1969) What power & discretion does the Qualifications clause give to congress? To decide all qualifications? Moral character?  If so, any exclusion by House would be unreviewable Decide the standing qualifications of Art. I, § 2  Exclusion on those grounds would be unreviewable  Exclusion on other grounds is reviewable. Which construction supported by history and political theory?

13. Spring, 2006Con Law I - Manheim12 Powell v. McCormack (1969) Is Expulsion a political question? Art. I, § 5, ¶ 2: “Each House may … punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.” Expell Exclude Why not Expell Powell, rather than Exclude him, if Expulsion is a non-review- able Political Question? Can S.Ct. articulate manageable standards for “disorderly behaviour”

14. Spring, 2006Con Law I - Manheim13 Goldwater v. Carter (1979) Claim: President’s unilateral abrogation of treaty with Republic of China violated Art. II, § 2, ¶ 2: “The President … shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur” What power has been dele- gated to the President? To the Senate? Are these judicial questions? Do they lack judicially manageable standards?

15. Spring, 2006Con Law I - Manheim14 Goldwater v. Carter (1979) Foreign Affairs: Always non-justiciable political questions? Inter-branch disputes? Even where the sole question is which branch has power to act? When should the Court intervene?  Powell: only when branches are at impasse  Why is this case unripe?  What injury had Goldwater suffered? [standing]  “Legislator standing” only if member has suffered injury in that capacity – e.g., denied vote

16. Spring, 2006Con Law I - Manheim15 Goldwater v. Carter (1979) Brennan Concurrence: Case unripe  Impass may never develop 3 elements of Pol. Qu.  Commitment to coordinate political branch  Resolution beyond judicial expertise  Prudential considerations counsel against deciding

17. Spring, 2006Con Law I - Manheim16 Goldwater v. Carter (1979) Brennan Concurrence: Case unripe 3 elements of Pol. Qu.  Commitment to coordinate political branch  Resolution beyond judicial expertise  Prudential considerations counsel against deciding Begs the question Need only apply std principles of const'l interpretation Deciding which branch has power to act shows no disrespect for either Doesn't the Court have a special duty to decide when the political branches disagree on who has power?

18. Spring, 2006Con Law I - Manheim17 Vieth v. Jubelirer (2004) Political gerrymandering “the practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantabe by diluting the opposition’s voting strength” Named for Mass. Gov. Elbridge Gerry. In 1812, the legis. redrew district lines to favor Jeffersonian Republican party candidates.Elbridge Gerry One reporter noted the district looked like a “salamander;” another said it looked like a “Gerry- mander.” The name stuck.

19. Spring, 2006Con Law I - Manheim18 Vieth v. Jubelirer (2004) Claim: drawing districts as to favor one political party violates equal protection (equal voting power) How political gerrymandering works: DistrictDemsReps 14,5005,500 24,5005,500 34,5005,500 48,0002,000 58,5001,500 Total30,00020,000 packing and cracking Expectation (random district lines): 3 Dems, 2 Reps

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22. Spring, 2006Con Law I - Manheim21 Vieth v. Jubelirer (2004) Scalia: Pol. Qu because: lack of judicially discoverable/manageable stds Equal protection claims require proof of discriminatory intent  no non-discriminatory explanation Presumably satisfied when 1 political party draws the lines discriminatory effect  1 party is “denied its chance to effectively influence the political process” harder for that party to directly influence the election returns – i.e., to get its candidates elected Note: must assume that Dems vote for Dem candidates, etc

23. Spring, 2006Con Law I - Manheim22 Vieth v. Jubelirer (2004) How can one prove discriminatory effect? I.e., absent political gerrymandering, plaintiff party would have had greater representation? Does any deviation from proportional represen- tation violate the EP clause?  No, a variety of legitimate factors could cause that E.g., drawing lines as to preserve political/geogr. boundries  The line drawing must be designed and have effect of creating partisan advantage than otherwise would occur rigged elections? How do you prove that?

24. Spring, 2006Con Law I - Manheim23 Vieth v. Jubelirer (2004) Scalia: Pol. Qu because: No baseline std exists against which to measure whether pl’s voting strength has been diluted  rejects notion of “substantive fairness”  a flabby goal In other words, in the context of voting strength dilution, we can’t identify an equal protection violation when we see it  So we have no jurisdiction

25. Spring, 2006Con Law I - Manheim24 Vieth v. Jubelirer (2004) Scalia: Pol. Qu: Is failure to agree on a standard the same as a “lack of judicially discoverable and manageable standards” to invoke Pol Qu?  5 members of the Ct provide standards, but they are different – how unusual !  Bottom line: because no std. by which to measure vote dilution, there is no judicial rememdy; pl’s should pursue a political remedy from the same body that has structurally disenfranchised them Isn’t this really a case of failure of proof, rather than failure of standard?

26. Spring, 2006Con Law I - Manheim25 Vieth v. Jubelirer (2004) Kennedy concurrence: Urges caution because issue is heavily political  “A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecendented intervention in the American political process”  This from a Justice who intervened in Bush v. Gore Standards are elusive, but not alien to courts Pl’s have failed to prove their claim, but not PQ Perhaps a 1 st amd claim easier to prove

27. Spring, 2006Con Law I - Manheim26 Vieth v. Jubelirer (2004) Stevens dissent Apply same std as in racial gerrymandering  race (party) cannot be used as predominant factor No standing to litigate statewide challenge  Is this the same as PolQu, as Scalia suggests? Souter dissent Court is obliged to establish a standard Compare actual lines to hypothetical ones Breyer dissent Standard flows from “first principles” of democracy

28. Spring, 2006Con Law I - Manheim27 Vieth v. Jubelirer (2004) Manheim standard ?? Vast number of ways to draw district lines without rigging the election  e.g., random districting by computer Each of the possible districting schemes would produce different partisan mix in legislature  assuming voters w/ party affiliation vote for party A statistical distribution would result showing likely legislative power for each party If districts actually drawn produce legislative mix that substantially differs from expectation  Then state has burden to show no gerrymandering

29. Spring, 2006Con Law I - Manheim28 In the wake of Vieth Jackson v. Perry, 125 S. Ct. 351 (2004) Judgment vacated, and cases remanded to the United States District Court for the Eastern District of Texas for further consideration in light of Vieth v. JubelirerVieth v. Jubelirer Oral argument: March 1, 2006 League of United Latin American Citizens v. Perry, 05- 204; Travis County v. Perry, 05-254; Jackson v. Perry, 05-276; and GI Forum of Texas v. Perry, 05-439

30. Spring, 2006Con Law I - Manheim29 Impeachment as Pol. Question Questions re impeachment of Pres. Clinton Can House of Rep. delegate investigation to special prosecutor (an executive officer)? Who decides whether lying to grand jury about sex in WH is a "high crime or misdemeanor"? Does Bill of Impeachment from 105 th congress survive for trial by 106 th congress? Since vote was taken after election, can lame duck Reps (e.g., lost reelection) vote? Can President of Senate vote if next in line? Can Senate overrule CJ (e.g., on motion)? Can Clinton be indicted even though acquitted?