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So just how do we deal with this complicated relationship between the central government and the States? On the one hand, the brief period of (quasi) State sovereignty (at most the 12 years between 1776 and 1787) proved the inadequacy of confederation. On the other, the creation of the constitution seemed to ignore State claims to sovereignty. Still, the debate over the breadth and effect of federal power is one our country has never resolved. Beginning with the ratification debates (Federalist vs. Anti-Federalist), continuing through the Marshall and Taney courts, through the Civil War and Reconstruction, on to the post-industrial revolution, war and economic depression, and into the 21st century, we are still haven't figured it out. Each era, it seems, has its own vision of federalism, and its own set of doctrines.
From Federalist Era to Dual Federalism
John Marshall was an ardent Federalist, and his opinions reflect his vision of broad and strong federal power. His successors, however, were more inclined to states rights. Starting with Dred Scott in 1854, through the Civil Rights Cases of 1883, all the way up to 1937, the Supreme Court used one technique after another to weaken federal power.
The Dual Federalism era (roughly 1883-1837) was premised on the primacy of state sovereignty (almost as if the South had won the Civil War). Not only were Congress' enumerated powers narrowly construed, the Court arrogated to itself the authority to assess the propriety of legislative "means." Compare, for instance, the Lottery Cases with Hammer v. Dagenhart. In the former, the Court held that Congress could ban interstate traffic in lottery tickets, but in the latter held a ban on interstate traffic in clothing made using child labor was unconstitutional. Lottery tickets, it seems, were harmful per se, but clothing made by kids was not. As you can see, not only did these cases get the federalism issue wrong, they also upended separation of powers principles (by the Court substituting its policy judgments for those of congress).
Federalism Recast
Among the many consequences of the Civil War was the reconceptualization of American federalism. No longer were the states to be trusted as guarantor of peoples' rights. Rather, the 13th, 14th and 15th Amendments confirmed that the federal government would be the principal protector of civil rights. These Amendments significantly curtailed state power, and each gave additional powers to congress to enforce civil rights.
The fruits of the Union victory were quickly lost when the Supreme Court ruled that the Reconstruction Laws (which were based on the Civil War Amendments) were unconstitutional, because they invaded states' rights. For the next 80 years, there were no civil rights laws in this country (except for some triffling few in some northern states). Thus, when America was once again ready to embrace civil rights as a tenet of human dignity, in 1964, Congress resorted to its power under the Commerce Clause, rather than its powers under the Civil War Amendments.
What should you know about this doctrinal and historical roller-coaster? You should understand the different approaches the Court took during the early years (Federalist period) and the post-Civil War and "Dual Federalism" periods. Doctrinal clarity was restored during the New Deal, but upset once again with the Rehnquist court in the late 20th century. That's where we'll pick up next week.
This is a new periodic feature of your Con Law blog. It is a good place to post comments that don't necessarily fit under any of the topical posts. For instance, if you have any thoughts about the "Reality Check" questions, this is where you'd put them.
As Justice Brennan said in Baker v. Carr, 369 U.S. 186, 217 (1962), "The doctrine of which we treat is one of 'political questions,' not one of 'political cases.' The courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority." This distinction is important to remember. Not every politically charged case satisfies the political question doctrine; in fact few actually do, even where one of the parties to the case is a political (elected) branch of government.
I've suggested a major and minor premise (or test) for the PQ doctrine: 1) a "textually demonstrable constitutional commitment of the issue to a coordinate political department;" and b) the "lack of judicially discoverable and manageable standards for resolving [the issue]." I've further suggested that the 2nd follows from the first (indeed, all formulations of the PQ doctrine flow from the first).
As used in the PQ doctrine, the "issue" is the claimed violation of a constitutional provision. Thus, in Luther v. Borden (1849), the issue was whether a state official lacked immunity because the state government was "not republican in form." In Baker, the issue was whether the malapportioned state legislature violated the equal protection clause. In Goldwater v. Carter (1979), the issue was whether Art. II, s 2, p. 2 required the President to submit treaty cancellations to the Senate for advice and consent. (See also Art. II, s 3). In Walter Nixon v. U.S. (1993), the issue was whether the Senate's Art. I, s 3, p. 6 power to "try all impeachments" was violated by having Judge Nixon's case first heard by the Senate Judiciary Committee. In each of these cases, the constitutional issue could not be adjudicated by a federal court if the constitution gave both power and (final decision-making) discretion over the issue to a coordinate political branch.
Avoiding Hard Cases Under the Guise of Political Question
In Goldwater v. Carter, Justice Rehnquist, writing for a 4-member plurality, thought the question of whether the President could unilaterally abrogate the mutual defense treaty with Taiwan was a "political" one, hence non-justiciable because: 1) it involved the nation's foreign relations, and 2) was controlled by "political standards." By that, it appears he means that there are no legal standards for determining whether, and on what conditions, to enter into or abrogate treaties. He's right on that, but that wasn't the issue posed in the case. It wasn't whether the President should have abrogated the treaty, but whether he had the right to do so unilaterally. That "issue" doesn't involve political standards (as opposed to legal standards) unless the constitution commits it exclusively to the executive branch.
This can be tricky to understand. There is no doubt the constitution left it up to the political branches alone to pass on treaties; nor is there any doubt that courts have zero role to play in the making or unmaking of treaties. But while it is clear that the constitution delegates this question to the political branches, it is not clear which political branch. More precisely, it is not clear from Art. II, s 2, p. 2, whether the President enjoys this power alone, or shares it with the Senate. Because of this lack of certainty, the case should not be dismissed on political question grounds.
On the merits of the case, Carter should win and Goldwater should lose. That's because Art. II, s 3 gives the President the sole power to "receive Ambassadors," which is essentially what he did in switching recognition from the Nationalist Chinese to the Communist (mainland) government. If he has sole power to receive ambassadors, you ask, doesn't that mean that Art. II, s 3 presents a "political question"? Yes, but only if that was the basis of Sen. Goldwater's claim. It wasn't. Rather, Goldwater sued for a violation of Art. II, s 2, which did not contain a "textually demonstrable constitutional commitment of the issue to" the President.
In other words, the Court had jdx to adjudicate Goldwater's claim, and then should have ruled against him because Art. II, s 2 had to be interpreted in light of Art. II, s 3, which favored the President.
Vieth v. Jubelirer
Justice Scalia made a similar mistake in Vieth v. Jubelirer (2004). That was a challenge to a redistricting plan in which Republicans in the Pennsylvania legislature gerrymandered Democrats out of office. Democrats sued, claiming a violation of first amendment and equal protection. Scalia, writing for a 4-member plurality, found that "political gerrymandering" cases were non-justiciable political questions. That was because there were no readily identifiable judicial standards for determining when a redistricting plan was unconstitutionally gerrymandered. (Click here for image of gerrymanderd districts in Vieth). This sounds a lot like the 2nd basis (minor premise) for the PQ doctrine as outlined in Baker v. Carr. But there, and everywhere else, that basis is an offshoot of the first (commitment to a coordinate political branch). Here, the major premise is completely absent.
Vieth is wrong for another reason. It is not based on Separation of Powers, as PQ cases ordinarily are. There is no SoP problem when the Supreme Court tells a state legislature its redistricting plan is unconstitutional. See Baker. In Vieth, Justice Kennedy supplied the necessary 5th vote to dismiss the case. He did so, not on PQ grounds, but simply because plaintiffs had failed to establish the standard for gerrymandering that would prevail in their case.
However, in a redux of Vieth, the Sup. Ct. is hearing next month several cases challenging the Republican-controlled Texas legislature's political gerrymandering during the 2004 election. See 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. You may remember this was Tom DeLay's coup (for which he is now under indictment for money laundering). It remains to be seen how the 2 new Justices (Roberts and Alito) will respond to a case that is both "political" and possibly a "political question."
In midieval England, a moot was an assembly for deciding local issues (from Old English meet). These meetings occurred in moot halls, and often involved hypothetical matters. This is probably the origin of the modern term moot court. But, in the U.S. legal system, the term has taken on a much different meaning; one going to the jurisdiction of federal courts.
Rather than repeat the doctrine here, I refer you to an excellent summary in Wikipedia, the free online encyclopedia that contains explanations of everything you need to know (not just in law school, but in life).
You can similarly find a Wikipedia explanation of ripeness. (It's not as good as the mootness discussion).
In organizing your notes (and thoughts) on mootness/ripeness and the other justiciability doctrines, you should undertand the doctrines on several levels. First, what is the rule? Second, what is the basis/purpose/theory of the rule? Knowing this will help you apply it to new factual situations. Third, what function does the rule serve in the broader policy/political/constitutional context? This will help you critique the rule and argue for extension/limitation/modification.
In the case of mootness and ripeness (and standing in general), you should understand how the rules are developed and applied to serve broader structural concerns of federalism and separation of powers. And, as you read between the lines of the justiciability cases, you may see how the S.Ct's embrace or hostility toward the merits of a case influences its decisions on jurisdiction. For instance, many have seen the Court's standing doctrines as an underhanded way to close the courthouse door to civil rights claimants, and to reduce accountability of government (often executive branch) officials. What do you think?
As a general rule, litigants may assert only those rights that are personal to them. While there are situations where the breach of someone's rights causes transcendent injury to others, the S.Ct. is very wary about third-party standing. That's because, ordinarily, the right holder is in the best position to vindicate her own interests.
Because the rule against third party standing (jus tertii) is one of "prudential self-restraint," invoked for policy reasons, the Court has crafted policy-related exceptions. These include: a) right-holder not readily available; b) special relationship between litigant and right-holder; and c) strong reason to favor early vindication of right, even if by 3rd parties.
Whether a litigant is asserting her own rights, or those of 3rd parties, depends on whether she is within the "zone of interest" of the right asserted. In the case of constitutional rights, this is for the S.Ct. to determine, while in the case of statutory rights, it is for Congress to determine. This explains the different outcomes in Warth v. Seldin and Arlington Heights v. MHDC. Although similar on the facts, the claim brought in the former was based on the equal protection clause, but in the latter on a federal civil rights statute. Persons who have been deprived the benefit of culturally diverse communities (and thereby injured-in-fact), but who themselves are not the victims of discrimination, are outside the "zone of interest" of the equal protection clause (as intepreted by the Court), but inside the "zone" of fair housing laws (as specified by Congress).
Jus Terii Exceptions
Some recognized exceptions to the rule against jus tertii standing are: sensitive and fragile rights, where right holders are often dissuaded from public assertion of rights (e.g., privacy, 1st amendment); and claims relevant to a special relationship (doctor-patient, etc). Related to jus tertii, but analytically distinct are rules for "associational standing" and "next friend" or "guardian ad litem" plaintiffs.
The rule for associational standing is simple. An association (no matter what business form it takes) can represent the claims of its members if they are: 1) germane to the association's purpose; 2) at least one of its members would have standing in his own right; and 3) personal participation by members is unnecessary (e.g., member-specific claims for damages). Associations can also have standing in their own right if their proprietary interests are at stake (e.g., Boys Club's license or property).
Parents and guardians often file suit on behalf of their children or other charges. In these cases, the "next friend" or "guardian ad litem" is suing on behalf of the 3rd party, not simply raising the 3rd party's rights. The parent/guardian need not have standing on their own; rather, it is fully derivative of the 3rd party.
Congressional Control Over Standing
As noted above, whether someone is within the "zone of interest" of a federal statute is something that Congress can determine, simply by broadening the reach of the statutory right they are creating. In this manner, Congress can resolve any jus tertii problems relating to federal statutory rights. See, e.g., Arlington Heights. Also, by creating a new right, the breach of which causes a "Hohfeldian" injury, Congress can influence the determination of whether an "injury-in-fact" arises for standing purposes. Yet, as we see in Lujan v. Defenders of Wildlife, not all statutory-based Hohfeldian injuries satisfy Article III. The S.Ct. has drawn a sharp distinction between "instrumental" and "non-instrumental" procedural rights. This will be covered in the next post.
