ClassOutline2/2/2016
Topicsdiscussed:Standing,Mootness,Ripeness
Case:ClappervAmnestyInternationalUSA
Facts:TheForeignIntelligenceSurveillanceActof1798allowedtheU.S.governmenttoacquire
foreignintelligenceinformationbyauthorizingsurveillanceonthosewhowerenotU.S.citizens.
AmnestyInternationalwasupsetasmostoftheirworkinvolvesthemcommunicatingwithnonU.S.citizensandwouldverylikelybeatargetofgovernmentsurveillance.Amnestybroughtsuit
seekingadeclaratoryjudgmentthattheForeignIntelligenceSurveillanceActwas
unconstitutional.
Holding:ThecourtheldthatAmnestylackedArticle3standingbyfailingtoproveinjury-in-fact.
Inorderforapartysucceedontheissueofinjuryinfacttheymustshowthattheinjuryis
“concrete,particularized,andactualorimminent;fairlytraceabletothechallengedaction;and
redressablebyafavorableruling.”
Rationale:ThecourtsaysthatAmnesty’sclaimedinjuryistoospeculative.Theirstrongbelief
thatthegovernmentislisteningtotheircallsistoospeculativetoshowinjuryinfact.Theycan’t
sayorshowthattheircommunicationwillbeintercepted(thereasontheydon’tknowifthe
harmhasoccurredisbecausetheinformationisclassified,sothegovernmentdoesn’tneedto
disclosewhetherornottheyhaveinterceptedtheirinternationalcommunications).
Case:HollingworthvPerry
Facts:In2008theCaliforniaSupremeCourtruledthatlimitingtheofficialdesignationof
marriagetoopposite-sexcoupleswasinviolationoftheCaliforniaConstitution.Laterthatyear
theCaliforniavoterspassedtheballotinitiative(Prop.8)statingthat“(only)marriagebetween
amanandwomanisvalidorrecognizedinCalifornia”.Twosame-sexcoupleswhowishedtobe
marriedfiledsuitinfederalcourt,challengingPropositionundertheDueProcessandEqual
ProtectionClausesofthe14thAmendment.Thecomplaintnamedanumberofstateofficials
whowereresponsibleforenforcingCalifornia’smarriagelawsasdefendants.Thestateofficials
refusedtodefendthelaw,althoughtheyhadcontinuedtoenforceit.Thedistrictcourtallowed
petitionerstointerveneanddefendProposition8.ThedistrictcourtruledthattheProposition
8wasunconstitutional.Thepetitioners,notthedefendants,soughtappealfromthe9thCircuit.
TheCourtconsiderswhetherornotthepetitionershaveArticle3standing.
Holding:PetitionerslackArticle3standing.Evenifapartyhasstandinginalowercourt,they
mustalsohavestandingonappeal.
Rationale:Article3requiresan“actualcontroversy”throughallstagesoflitigation.Afterthe
DistrictCourt’srulingthepetitionersclaimedinjurydidnotaffecttheminanypersonalor
individualway.Petitioner’shasno“directstake”intheoutcomeoftheirappealsincea
reversingoftheDistrictCourt’sdecisionwouldserveonlytovalidateagenerallyapplicable
Californialaw.Sucha“generalizedgrievance”isinsufficienttoconferstanding.
Case:UnitedStatesvWindsor
Facts:Thiscasebeganaschallengetofederalestatetaxespaidbythesurvivingspouseofa
same-sexmarriageconcludedinCanadabytwowomenwholivedinNewYorkatthetimeone
died.Thetaxeswouldnothavehadtobeenpaidbythesurvivingspouseofanopposite-sex
marriagebutsection3ofDOMAprovidesthatinallfederallawstheword“marriage”means
onlybetweenhusbandandwife.Windsorchallengedthatprovisionsasunconstitutional.
DuringlitigationtheAttorneyGeneraldecidednottodefendtheconstitutionalityofDOMA,but
tocontinuetoenforceit.TheBipartisanLegalAdvisoryGroupoftheHouseofRepresentatives
intervenedtodefendsection3ofDOMA.DistrictCourtruledinfavorofWindsor.Supreme
Courtinvitedanappointedamicustoarguewhetherthecasewasjusticiable.
Holding:ThecasemettheArticle3requirementofbeingalegitimate“controversy”because
theGovernmentcontinuedtogivelegaleffecttothecontentionputforwardbyWindsor
despitenotagreeingwithit.
Rationale:TheU.S.hasasufficientstakeintheoutcomeofcasetowarrantArticle3
jurisdictionbecauseanorderdirectingthetreasurytopaymoneyisa“realandimmediate
economicinjury”.EveniftheExecutiveBranchishappytopaytherefund,itdoesnotchange
thefactthattherewouldbeeitheraninjurytothenationalTreasuryortothetaxpayer.BLAG’s
presenceprovidedthenecessaryrequirementofa“real,earnestandvialcontroversy”.
ClassDiscussion
Webeganclasswiththefollowinghypo:
Adefendantcreditreportingcompanypublishesfalseinformationaboutplaintiff,butit'sfalse
informationthat(allegedly)doesn’tcausehimanyeconomicorevenreputationaldamage(likefalsely
claimingthehasanadvantagedegree).
PlaintiffsuesundertheFairCreditReportingAct(assumeit'struethatthepublicationviolatesthatact),
seekingstatutorydamagesasprovidedbythatactfortheviolation.
Defendantmovestodismiss,claimingplaintifflacksaninjuryforstandingpurposes.
Whatresult?
Wesaidthatthedifficultywiththiscaseisthatitisnotveryclearthattheplaintiffhadsufferedany
injuryalthoughhehadestablishedthatastatutoryrightwasviolated.ProfessorGowdersaidthatthere
werethreeviableanswers/positions
1) Theplaintiffhasnostanding
a. Thisisbecausetheπexperiencednorealinjury.
2) Plaintiffdoeshavestanding
a. Thisisbecausecongresscancreatealegalright,andifthatrightisviolatedthenan
injuryhasinfactoccurred.
b. Therearemanyexamplesofrightscreatedbycongresssuchascopyrights,welfare
benefits,ect.
3) Havingfalseinformationpublishedaboutyouisaharm,evenifthatinformationis
complementary.
a. Thisisstillaninjuryinfact.
Remember
that this is a real case before the Court
now,
Spokeo!
AfterthehypoweturnedourattentiontoClappervAmnestyInternational(seebriefabove)wherethe
courtfoundthatAmnestylackedArticle3standingbecausetheirargumentofinjury-in-factwastoo
speculativeandlackedimminence.WediscussedafewwaysinwhichAmnestymayhavemore
successfullyarguedinjury-in-fact:
1) Iftheycouldhaveshownthatthegovernmenthad,insomeway,usedinformationthatthey
hadcollectedfromlisteningtotheirconversations.
a. Thiswouldbeliveevidenceandwouldhavegiventhemstanding
2) AmnestycouldhavearguedthatbecauseoftheForeignIntelligenceSurveillanceAct,manyof
theircontactsabroadhadstoppedtalkingtothembecausetheyknowthatthegovernmentmay
belisteningtothem.
a. Thisargumentmaynotflybecauseof3rdpartyintervention.
WebrieflydiscussedtheHollingsworthcase.Wesaidthatthiscasecontainsanissueofstanding.Ifa
partyhasstandinginalowercourt,theymustalsoprovetheyhavestandingonappeal.Worded
differently,justbecauseyouhavestandingintheinitialcomplaintdoesnotmeanyouhavestandingon
appeal.IntheWindsorcasewedissedhowtheexecutiverefusedtodefendDOMAsection3,butthen
continuedtoenforceitforthepurposeofhavingthecourtmakearulingonit.Inthiscaseboththe
plaintiffandthedefendantwantedthelawstruckdown=collusive.Thiscasefeelsdirty,similarto
MarburyvMadison.
Whatdidthecourtdotomakethiscasenotcollusive?
• Theydecidedthattherewasnonethelessaninjury,statehadaninjuryinfact.
• Deprivingsomeoneoftaxbenefitsisaninjurytothegovernment
o Solvesthetechnicalstandingproblem
• ResolvingCaseorcontroversyissue
o Allowedsomecongressionallawyerstoshowupandpretendtobethedefendant
o Thecourtbroughttheminsotherewas"caseorcontroversy"
o Wasaveryclevertrickforthecourttogetaroundarticleof3
Wefinishedclassbydiscussingtheconceptsofmootnessandripeness.Mootnessrequiresthatan
actualcontroversybeextantatallstagesofreview,notmerelyatthetimecomplaintisfiled.Occurs
whenlitigantswhoclearlyhadstandingtosueattheoutsetofthelitigationaredeprivedofaconcrete
stakeintheoutcomebychangesinthefactsorinthelawoccurringafterthelawsuithasgotten
underway.Wesaidthatanexceptiontoacasebeingmootis“capableofrepetitionyetevadingreview”.
AnexampleofthisisRoevWade.Roebroughtsuitin1970butitwasn’tdecideduntil1973.Obviously
shewasnolongerpregnantin1973butthecourtdeclinedtodismissthecaseasmoot.Solongasthe
partieshaveconcreteinterest,hoversmall,intheoutcomeofthelitigationthecaseisnotmoot.
Ripenessbecomesapotentialissueinacasewhenaclaimedinjuryiscontingentuponfutureevents.
Somebelievetheripenessdoesn’texist,thatitisthesamethingasstanding.Ifyourissueisnot
imminentthenyoulackstanding,whichisthesameconceptasripeness.
I.
TUESDAY2/2OUTLINE
a. Cases
i. Clapperv.AmnestyInternational
1. Posture:Plaintiffs(numeroushumanrightsorgs,lawyersand
journalists)challengedaprovisionfortheForeignIntelligence
SurveillanceAct(FISA)claimingthatitviolatedtheFirstandFourth
Amendments.Thedistrictcourtgrantedsummaryjudgmenttothe
governmentandtheappealscourtreversed.Thecaseishereappealed
furthertotheSupremeCourt.
2. Facts:PlaintiffschallengedFISA’sauthorizationofelectronicsurveillance
bythegovernmentofnon-U.S.personsoutsidetheU.S.forforeign
intelligencepurposes.Thenewprovisionswouldrequireplaintiffsto
takecostlymeasurestomaintainconfidentialityintheirinternational
communications.TheDistrictCourtheldthatplaintiffsdidnothave
standingtobringtheirchallengebecausetheyhadnoproofthatthey
weresubjecttosurveillanceunderFISA,buttheCourtofAppeals
reversed,holdingthatplaintiffshadstandingbasedonareasonablefear
ofinjuryandcostsincurredtoavoidsuch.
3. Issue:DoplaintiffshavestandingtoseekspeculativereliefunderFISA?
4. Holding:No.Claimingapossibilitythattheircommunicationswillbe
interceptedisnotenoughtoestablishanactionablefutureinjuryand
nopresentinjurycanbeestablishedfromplaintiff’sdecisiontotake
costlymeasurestoprotecttheircommunications.Thedissenting
justicesarguedthatthefutureharmwasnotspeculativeandshould
haveestablishedstandingbecauseofthehighprobabilitythatthe
governmentwouldintercepttheircommunicationsinthefuture.
5. Classdiscussion:Couldstandinghavebeenarguedbecausepeoplein
othercountrieswereunwillingtoengageincommunicationwith
AmnestyInternationalbecauseofgovernmentsurveillanceunderFISA?
Well, maybe, depending on 3rd party intervention
Probably.
argument.
ii. Hollingsworthv.Perry
1. Posture:Plaintiffs,onegayandonelesbiancouple,suedthestateof
CaliforniaclaimingthatProposition8,whichamendedthestate
Constitutiontoprovidethat“onlymarriagebetweenamananda
womanisvalidorrecognized”violatedtheirFourteenthAmendment
righttoequalprotectionunderthelaw.Thestateofficialsnamedinthe
suitrefusedtodefendProposition8sothepetitionersinthiscase
steppedinandcountersuedtodefendit.Thedistrictcourtheldthatthe
lawviolatedtheU.S.Constitutionandthecourtofappealsaffirmed.The
caseishereappealedfurthertotheSupremeCourt.
2. Facts:CaliforniavotersfirstpassedProposition22in2000,establishing
alegalunderstandingthatmarriagewasaunionbetweenonemanand
onewoman.TheCaliforniaSupremeCourtreviewedthelawin2008
andheldthatitwasinvalidundertheCaliforniaConstitution,which
requiredtheterm“marriage”toincludecouplesofthesamesex.The
citizensofCaliforniaretaliatedbypassingProposition8inthesame
year,whichwasthecauseforplaintiffstobringthissuit.Petitioners
werestrongproponentsofthelawandcountersuedtoensurethat
marriageinCaliforniawouldcontinuetobelimitedtoheterosexual
unions.
3. Issue:Dothepetitionershavestandingtoargueindefenseof
Proposition8?
4. Holding:No.Federalcourtsonlyhaveauthoritytodecidecasesinwhich
thecomplainingpartyhassuffereda“concreteandparticularized
injury”forwhichthecourtcanprovideredress.Petitionerswerenot
actuallyaffectedbyProposition8andonlyhadageneralizedgrievance
thatitmightbeoverturned.Thedissentingjusticesarguedthatthe
SupremeCourtshoulddefertostates’rightsindeterminingwhich
partieshavestanding.BecauseCalifornialawallowsthirdpartiesto
assertthestate’sinterestwhenofficialsdeclineto,theCalifornia
SupremeCourt’sdeterminationofthepetitioners’standingshouldbe
Note important part about appeal vs original
binding.
standing.
5. Classdiscussion:Standing-likequestionofwhetherthepartyisthe
defendantinthelowercourt,iftheymusthavestandingtoappeal.
iii. UnitedStatesv.Windsor
1. Posture:PlaintiffwidowfiledsuitseekingadeclarationthattheDefense
ofMarriageAct(DOMA)wasunconstitutional.Agroupof
representativesintervenedwhenthegovernmentdeclinedtodefend
DOMAandmotionedtodismissthecase.Thedistrictcourtdeniedthe
motionandheldthatDOMAwasunconstitutional.Thecourtofappeals
affirmedandthecaseishereappealedfurthertotheSupremeCourt.
2. Facts:Plaintiffandherwifewereahomosexualcouplewhowere
marriedinCanadaandhadtheirmarriagerecognizedunderNewYork
law.Whenplaintiff’swifediedandleftherentireestatetothewidow
thefederalgovernmentimposed$363,000intaxesthatwouldhave
beenexemptedifthecouple’smarriagewererecognizedunderfederal
law.PlaintiffbroughtthissuitinanattempttooverruleDOMAandthe
PresidentandAttorneyGeneralannouncedthattheywouldnotdefend
it.TheBipartisanLegalAdvisoryGroupoftheHouseofRepresentatives
intervenedtodefendDOMAandmotionedtodismissthecasebutthis
actionwasdeniedandthecasewasheard.
3. Issue:DoestheDefenseofMarriageActdeprivesame-sexcoupleswho
arelegallymarriedunderstatelawsoftheirFifthAmendmentrightto
equalprotectionunderfederallaw?
4. Holding:Yes.Stateshavetheauthoritytodefinemaritalrelationships
andDOMAunderminesthatpower.DOMAimposesa“disadvantage,a
separatestatus,andsoastigma”onhomosexualcouples,thereby
violatingtheEqualProtectionClausetheFifthAmendment.The
dissentingjusticesarguedthattheSupremeCourtdidnothavethe
jurisdictiontoreviewthiscasenorthepowertoinvalidate
democraticallyenactedlegislation.
5. Classdiscussion:Theexecutivedeclinedtoenforcethelawandall
partiesinvolvedwanteditrepealeduntiltheBLAGintervened.Isthis
sortofcollusivebehaviorcommonandaccepted?
b. Hypotheticaldiscussion
i. Defendantcreditreportingcompanypublishesfalseinformationaboutplaintiff,
butit’sfalseinformationthat(allegedly)doesn’tcausehimanyeconomicor
evenreputationaldamage(likefalselyclaiminghehasanadvanceddegree).
ii. PlaintiffsuesundertheFairCreditReportingAct(assumeit’struethatthe
publicationviolatesthatact),seekingstatutorydamagesasprovidedbythatAct
fortheviolation
iii. Defendantmovestodismiss,claimingplaintifflacksaninjuryforstanding
purposes.Whatresult?
iv. Viablepositions
1. Thereisnoinjurybecausethefalseinfocausesnodamage.
2. Congresscancreateaninjurybycreatingalegalright.Violationofa
legalrightcreatedbycongressisaninjury.
3. Havingfalseinformationpublishedisanactualharmwhichcansuffice
forstanding,evenifthefalseinfoiscomplimentary.
c. Mootnessandripeness
i. Mootness
1. Ifthematterbeingadjudicatedisnolongeranissuethenlegal
proceedingscanhavenoeffect,renderingtheissuemoot.
2. Exception:Capableofrepetitionbutevadingreview.Pregnancyisthe
classicexample.
3. Defendantcannotmakecasemootmerelybyhaltinginjuriousbehavior.
ii. Ripeness
1. Mayhaveclaimthatcourtcanremedyinfuture,butnotyet.
2. Nostandingiftheinjuryisspeculativeandnotimminent.
General Outline for 2 FEB 2016
Case Briefs
Clapper v Amnesty International (Supp p1)
Brief Facts:
Amnesty Int'l (Amnesty) works with certain foreign persons who feel they are under threat of
surveillance by the US government and Amnesty feels it will suffer or is suffering injury as a
result of 50 USC S1881a which authorizes the government to seek permission to surveil
qualified targets.
Procedural History:
P sought injunction and damages for expenses incurred. Lower court allowed standing based on
a lower standard.
Issue:
Is alleged injury resulting from foreign surveillance a justiciable question?
Holding:
Lower court is reversed (improper standard applied). Not in this case because P lacks standing
due to remoteness/speculative nature of injury. P contends that expenditures made to avoid a
speculative injury is sufficient for standing, but court disagrees because the causal link between
these expenditures and the possibility that they will prevent some future harm under S1881a is
too tenuous and not imminent.
(no injury, no causation = non-justiciable, no standing; see Lujan for elements discussion)
S1881a authorizes but does not mandate surveillance - Amnesty is speculating that it will be or is
a target by virtue of its contact with others who may or may not in fact be targets. Amnesty is
not privy to the intelligence decisions of the government and cannot be certain that it is being or
will be targeted.
S1881a is not the only authority under which such surveillance might occur and so traceability is
questionable too, even if imminence is proved or assumed.
No guarantee of success, even if authorized and pursued under S1881a - no injury, no claim.
Moreover, actions based on fear of hypothetical future harm that is not imminent does not
manufacture injury for purposes of standing.
Dissent:
There is no question as to whether a tap is a concrete injury. We ask only whether a tap is
imminent or actual. P's have and continue to engage in conversations that are the subject of
1881a. The government has a strong motive to tap the conversations. And the government's
behavior has shown that is has in the past tapped this type of conversation and thus is likely to
continue to do so. Finally, it has become easier to do so because of this law. We should assume
that the government is doing and will continue to do its job, absent evidence from them to the
contrary. Certainty is not meant to be taken literally - virtual certainty has been enough in the
past and should remain so. Given the probability that the government will tap an Amnesty call at
some point, imminence should be met for the injury element of standing.
Hollingsworth v Perry (Supp p6)
Pro His
Same sex couple challenges restriction on same sex marriage resulting in CA Supreme Court
legalizing same sex marriage. Prop 8 passes banning same sex marriage. Same sex couple
challenges prop 8 and CA Supreme Court upholds prop 8. Same sex couple sues in federal
district court but CA government refuses to defend. Federal district court allows prop 8
proponents to stand in defense and they lose. Proponents try to appeal and circuit court is
unconvinced so asks CA Supreme Court for authorization of D's to appeal on behalf of
government which they affirm. Circuit Court hears the case (we don't have this in the
supplement, but presumably they lose again) and then the case is appealed to the US Supreme
Court.
Facts
In 2008, the California Supreme Court declared unconstitutional the limitations placed on use of
the official designation of "marriage." A year later, a ballot initiative, Proposition 8, was passed
and became an amendment to the California State Constitution. Prop 8 said that same-sex
couples may not legally marry. A same sex couple filed a federal action and won its case against
basically all the government officials in the state. The state had refused to defend the case so it
was defended instead by the proposition 8 initiators. They were allowed to defend/intervene at
the district court level. When they lost and tried to appeal, however, the circuit court was not
convinced they had standing and asked the state SC to tell them whether they could assert an
argument for the state which was answered in the affirmative. The circuit court heard the case
which was then appealed to the US Supreme Court.
Issue
If an amendment is adopted/ratified and the state government chooses not to defend it and a 3rd
party intervenes to defend but loses, may it also intervene to appeal? Essentially, does the 3rd
party have standing on appeal if the injunction is not against it so that it suffers no concrete
injury?
Rule
Prudential Standing - 3rd Parties generally do not have standing because they have not suffered
an injury in a "personal and individual way." If they do not have a direct stake, then they have
no standing (see Lujan).
Holding
Circuit Court is vacated and remanded for dismissal for lack of standing. District Court ruling
stands (P there had direct stake/injury, even though D didn't and was intervening on behalf of the
State who refused to defend).
Petitioners (D) have no standing because they were not enjoined by the District Court. They
have suffered no injury and thus have nothing to appeal. They have no right to act as agents of
the people of California, as claimed. They were authorized by the State Supreme Court via
question certified by the federal circuit court only to assert the state's interest - meaning they
could argue in defense of the proposition. Here, they were trying to defend an injunction against
various government representatives, not the proposition itself. Their only grievance in a general
one - they lack a personal and individual injury. The governor/AG was enjoined from enforcing
a law, not the petitioners. The governor/AG could appeal, but not the petitioners.
Dissent
Hogwash. The initiative process was meant to give the people the power to do what their elected
representatives would not: enact laws they felt necessary. They exercise their right to selfgovernance in this way. By not allowing the official proponents appeal an injunciton that bars
enforcement of their initiative, we give the governor and other officials a pocket veto. They need
only refuse to defend a law in federal court to avoid enforcing it. By giving them this power, we
are removing the power from the people to self-govern and overturning a century-old process at
the same time.
United States v Windsor (Supp p11)
Pro His
Case was brought in federal district court but AG refused to defend. BLAG was allowed to
intervene on behalf of the government. Windsor won, and the government (via BLAG) appealed
the judgment. Then the Court invited an appointed amicus to argue whether the case was
justiciable, which is the subject of this hearing. This is NOT the merits case.
Facts
A same sex couple married legally in Canada moved to New York where one died and her
widow was forced to pay federal estate tax that would not have been paid by a same sex couple's
surviving spouse. Section 3 of DOMA defined marriage as between one man and one woman
which caused the tax in controversy.
Issue
Does the government have standing to appeal and does this Court have jurisdiction to hear the
appeal if it does? More explicitly, if there is lack of controversy, do we have jurisdiction under
const A3.
Rule
There is standing if there is an injury and if there is adversarial presentation of the arguments
which may be satisfied by amicus briefs, then we can hear the case without violating selfimposed rules regarding earnest controversy. (These rules are according to the majority opinion
and only the standing side of the coin uses a cite; the controversy question does not include a
cite)
Less well fleshed out than others here
*Pagebreakforclarity
Holding
The government suffers injury by having to pay a refund to the widow which creates a case
because the government refused to do so and the amicus briefs and presentation by BLAG is
sufficiently adversarial to create an earnest controversy. While the government agrees with the
position of the plaintiff, it still acts in opposition and only refunds the money on order of the
lower court. Basically, actions speak louder than words, so there is in fact a case in controversy
even if the government wants the same outcome but is forced by law to act against that desire.
The case may be heard on the merits.
Dissent
Scalia:
When Windsor won, her refund was ordered. The government agreed it should pay the refund.
If everyone agrees, why are we here? Where is the controversy? We may not decide what the
law is whenever a law conflicts with the Constitution - we may only decide the outcome of
lawsuits where there is a controversy. Here there is none, so why do we have jurisdiction? If
there is no opposing party, then having a stake is irrelevant.
Class Discussion
Hypo 1
We started the class with a hypothetical that is roughly reproduced here:
D credit reporting company publishes false information about P, but it's false information that
(allegedly) doesn't cause him any economic or even reputational damage (like falsely claiming he
has an advanced degree).
P sues under the Fair Credit Reporting Act (Assume it's true that the publication violates that act),
seeking statutory damages as provided by that Act for the violation.
D moves to dismiss, claiming P lacks an injury for standing purposes.
What result?
In my small group, the argument is this: if the violation is an injury by statute, then all 3 elements of
Lujan are met. If not, then no injury is available for standing purposes.
Glad you recorded small group discussion
Full class discussion:
Lujan test
Injury - 2 parts, invasion of a legally protected interest which is a) concrete/particularized and b) actual or
imminent
a) Violation is possibly not concrete, question is whether Congress can create a procedural harm
(violation of act = injury)
a. Economic or reputational harm would likely be viewed as a real injury, but has P
suffered a real life injury?
b) Violation is actual, but no actual harm resulted from violation.
Hypo is based on currently pending Spokeo v Robins (http://www.scotusblog.com/casefiles/cases/spokeo-inc-v-robins/) and there are 3 possible outcomes:
1. No standing, dismissed
2. Having false information published about you is an actual harm which on its own is a harm
sufficient for standing
3. Congress can create a procedural injury: violation of statute is injury on its own = standing is
established
We then discussed argument for the second outcome: Congress creates property rights all the time,
including copyright, welfare benefits, etc.; why not create a property right in an honest credit report?
Clapper v Amnesty (Supp p1)
N we came to this case we began with a brief summary of the facts (you can review them above in the
case brief section). In a sentence, Amnesty works with potential targets of the FISA intelligence program
and doesn't want its communications wiretapped and sought to enjoin its operation. This gets into
standing issues because there was no concrete injury claimed. (need injury, causation, and redressability +
check prudential standing doctrines listed on CB p47-50 #4-7)
Clapper Holding and Reasoning
No standing because no proof that an injury is occurring or ever will but Prof raised evidentiary problem:
We don't know the injury will be suffered because the surveillance would be classified and likely would
remain so unless a prosecution resulted.
One thing Amnesty could have claimed: If the government had actually tried to use the information and
had to reveal that they listened to a protected conversation, standing would exist because of a violation of
client-attorney privilege or US targeting, etc.
Another argument: Amnesty should have pled injury from invasion without a warrant without reference
to the particular statute, but this isn’t its strongest argument. Stronger argument: Amnesty could argue
loss of clients who refuse to talk to them because of the possible surveillance. As the attorney, you might
ask your client (Amnesty, here): Is there anything concrete that you know has gone wrong as a result of
this statute and practice? To which they might respond, “Yes, our clients all quit us for being surveillance
targets.” Court might dismiss this argument as a 3rd party intervention, but it’s probably your best bet.
Hollingsworth v Perry (Supp p6)
We moved on to this case VERY briefly and were told we’d discuss in more depth next day or next week
possibly. I included the case brief on this case even though there was not as much discussion as on
Clapper v Amnesty. This is a “standing light” question: Even if there was standing in the district court, if
there is no D with standing on Appeal, then there is no standing to appeal (bottom para on Supp p7).
United States v Windsor (Supp p11)
We moved to this case next and gave it a similarly light touch in class. Again, I included the brief
anyway, because I’m good like that. In a nutshell, AG chose not to defend the law - Executive declined
to defend the law, but chooses to enforce the law for the express purpose of trying to get the Court to
strike the law. All parties wanted the same outcome so no real controversy. Per Prof - collusion, “dirty”
case.
How did the Court try to get around the Executive's attempt at collusion?
1. Court decided there was an actual injury to separate the standing question from the due process
question
2. Court allowed lawyers for Congress send lawyers to be the D, so that case/controversy would be
satisfied and the court could have jurisdiction
Outcome: Strike DOMA as unconstitutional
There will be handout on ICON regarding standing, but you should read from CB p45-53 if you want the
book version.
Moving on, we used another hypothetical to discuss
Mootness and Ripeness
Hypo 2
IC enacts ordinance that allows police to hold people for 48 hours on mere suspicion
P gets locked up for suspicion, and asks lawyer to file complain from jail seeking an injunction
against the suspicion detention act
Will or won't the court hear the case for justiciability?
*Our group mentioned all the same things the class did so I’m only including the class version.
Argument for hearing it: repeatable harm
Argument against hearing it: City argues mootness, no more injury since P was released
“Capable of repetition, yet evading review” **This is important in a lot of cases so make sure you
understand it. Example: Roe v Wade - sometimes an injury is time limited, but this shouldn't preclude the
court from hearing the issue (courts are slow, that’s not fair to P’s) because it could easily come up again
in the future.
P must typically show that the injury will happen to P again in the future (In Roe, P could become
pregnant again). City would then argue that P has no way of knowing he'll be held on suspicion again
(not likely to repeat harm alleged). So what to do?
Voluntary ending of the challenged behavior does not typically end the case; exception: when it is not
possible for D to resume (example, government enacts policy change that prevents challenged behavior).
"policy" change may not be strong enough unless
it's actually written into law, e.g. by statute, reg
A brief summary of this hypo’s relevant doctrines:
Mootness (standing to begin with, but not at the end)
Ripeness (there is an injury that can be remedied in the future, but the injury hasn't occurred yet; **This is
much like the standing issue because the injury is speculative/not imminent)
Class adjourned.
Outline for 2-2-2016
Clapper v. Amnesty International
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Facts
o Foreign Intelligence Surveillance Act of 1978 grants the Attorney General and
Director of National Intelligence power to acquire intelligence on people who are
not “United States persons” and are reasonably believed to be located outside the
U.S.
§ They “normally” must have approval from Foreign Intelligence
Surveillance Court.
o Plaintiffs in this case are people, mainly attorneys, who engage in
communications with people they believe are likely targets of surveillance.
§ Like people detained in Guantanamo.
o Claim future injury in fact based on the objectively reasonable likelihood that
their communications will be acquired through surveillance.
o Claim present injury in fact because they have already had to take costly
precautions to ensure their communications are not being monitored.
Procedural History
o Appellate Court gave judgment for the plaintiffs.
Decision
o Reversed.
Issue
o Is the standing requirement for injury in fact an “objectively reasonable
likelihood?”
Holding
o No.
Rule
o To establish injury in fact for future events, the “threatened injury must be
certainly impending to constitute injury in fact.”
Rationale
o The Court starts by reasoning that the Second Circuit’s “objectively reasonably
likelihood” standard for judging a threatened injury is inconsistent with the
Court’s standard that the “threatened injury must be certainly impending.”
o Furthermore, the Court reasons that there is an extensive list of events that has to
happen for the injury to even occur. A future injury must be much more
impending to constitute injury in fact. There are too many unknowns.
§ The plaintiffs are only challenging the specific statutory provision and not
any other provisions that may allow for the government to monitor
conversations. This causes the suit to fail the “fairly traceable”
requirement.
§ Foreign Intelligence Surveillance Court also has to authorize the
monitoring as well. No certainty that the FISC has done this.
§ Government would have to also be successful in obtaining the targeted
communication. Plaintiffs would have no knowledge if their conversations
were acquired. (Mainly because acquired information is confidential…)
•
o As for the argument that there is a present injury because plaintiffs are trying to
avoid injury by taking costly precautions, this argument fails because the harm
they are trying to avoid must still be impending. They can’t create their own
injuries based off their own speculative fears.
o The argument that if plaintiffs don’t have standing then nobody will is not
justification enough to give plaintiffs standing where it otherwise doesn’t exist.
The Court isn’t trying to protect the statute from all judicial review.
o The government is also required to disclose to a targeted individual about the
acquisition of communications. Once that notice has been made, a claim against
the statute is much more appropriate since the injury to an attorney is known and
ONLY if govt wants to use info in court
real.
Dissent
o At the core of the argument, the dissenters reason that the harm anticipated here is
no less speculative than any other reasonably anticipated future event.
o The dispute centers around the “actual or imminent” requirement.
o The new addition to the law reduces the necessary standards that the government
must satisfy in order to obtain authorization to monitor a specific person. Allows
for increased likelihood of monitoring.
o The likelihood of obtaining communications made by the plaintiffs with
monitored persons is more likely than the Majority admits because of the
frequency and means by which the plaintiffs have to communicate with targeted
individuals.
o The nature of the conversations that the attorneys are engaging in with
Guantanamo detainees are directly related to international terrorism, so those
conversations are very likely to be monitored. Seems to make the injury more
than speculative.
o It is reasonable to infer that the government will intercept some of the
communications between plaintiffs and targeted individuals because the
government has admitted that it intends to intercept communications about
terrorism.
§ “Certainty” isn’t the touchstone for standing. Courts often enjoin based off
highly likely or reasonably likely claims. That is all that is necessary here.
§ High “probability” that something will occur has traditionally been
sufficient for standing.
Hollingsworth v. Perry
•
Facts
o Plaintiffs (a same-sex couple) originally sued defendants (California
governmental officials), challenging Proposition 8 under Due Process and EPC
claims.
o Litigation was a result of a California Supreme Court case that forbid limiting
marriage to opposite-sex couples. California voters passed a ballot initiative as a
response that would only recognize marriage between a man and a woman.
•
•
•
•
•
•
•
o California Supreme Court reconciled this by saying no legal rights changed as a
result of the ballot initiative, only the official designation of marriage.
Procedural History
o Plaintiffs commenced suit, and defendants refused to defend the law. Court
allowed for interveners on behalf of the California governmental officials. District
court ruled Proposition 8 unconstitutional and enjoined officials from enforcing it.
Interveners appealed it up and the question of standing came into play. Court of
Appeals reasoned that official proponents of an initiative may appear on behalf of
public officials who refuse to defend a suit on the matter.
Decision
o Reversed and remanded.
Issue
o Can an intervening party with no “normal” interest in the suit proceed with the
suit on appellate matters?
Holding
o No.
Rule
o Standing still requires an injury in fact to all parties involved in the appeal, even
in the case that intervening parties come into play at the trial level.
Rationale
o Standing requirements don’t change because of interveners’ involvement in a suit.
Standing still requires that a litigant must seek relief for an injury that affects him
in a “personal and individual way.” Interveners have no direct stake in the
outcome.
§ They only have a “generalized grievance” in arguing for the constitutional
validity of a California law. Lujan is precedent that this isn’t sufficient
under the standing requirements.
o Petitioners’ (the interveners) legal interest that satisfies the standing requirement
ends once the ballot initiative becomes law. Then it is the government who has
standing because of its interest in the enforcement of law.
§ Dicta in precedent from the Court of Appeals establish that petitioners
have an interest, but it is only a generalized one.
o They aren’t agents of the state that can bring suit on behalf of the state because
they aren’t accountable to the state in anyway. There is no fiduciary obligation
between the petitioners and the state. They take no oath of office.
Dissent
o California law is what needs to be examined in order to determine if petitioners
had the right to postenactment judicial proceedings. The California Supreme
Court has found that its law answers this issue.
o California law establishes that official proponents, like the petitioners, have
standing because the injury in fact is more specific than that to the general public.
o Who can have standing if the people who promote the initiative to circumvent the
elected representation of the government can’t defend the initiative?
o Conventional agency relationships don’t necessarily apply to this scenario. The
initiative process isn’t formulated to have agency law apply to it when it is an
inherently democratic construct. It also makes no sense to make the principal the
attorney general when it’s his refusal to defend that causes the situation in the first
place.
o Justiciability questions are focused on ensuring zealous advocacy. Zealous
advocacy is ensured by making sure officials not interested in defending a suit are
not the only individuals allowed to defend a suit.
United States v. Windsor
•
•
•
•
•
•
•
Facts
o Plaintiff (spouse of a same sex marriage done in Canada) challenged § 3 of
DOMA that provided that marriage only meant a legal union between a man and a
woman.
§ Based off a claim related to federal estate taxes.
o During the litigation, the attorney general decided not to defend the suit.
§ But the executive branch would continue to enforce the provision.
o BLAG of the House of Representatives was allowed to intervene as an interested
party.
Procedural History
o District court ruled for the plaintiff. Court of Appeals affirmed.
Decision
o Affirmed.
Issue
o Is there a justiciable controversy when the executive branch chooses not to defend
a suit during the litigation but plans to still enforce the law nonetheless?
Holding
o Yes.
Rule
o If the execution of a law by the government creates a case or controversy with
another party, the refusal to defend is not a bar to the justiciability of the case.
Rationale
o The government ensured there was a justiciable controversy by validating the
injury to Windsor. Windsor had an injury because even though the executive did
not defend the suit, it chose to enforce the statute pending the ruling of the
Supreme Court.
§ Therefore, Windsor’s injury is still “concrete, persisting, and
unredressed.”
§ And an injury to the United States exists because a judgment making the
Treasury pay money is real and immediate.
o This case deals with a distinction between the constitutionally obligated Article
III case or controversy requirements and the Court’s prudential considerations.
§ Prudential limits typically depend on political questions, not individual
rights. BLAG’s interest was adversarial enough to create a
case/controversy and not have prudential concerns bar it.
o Paralleling Chadha, the case or controversy requirement just requires that the
“decision will have real meaning.” The injury to the plaintiff or Treasury is real.
§ Thus, the Article III requirements are met.
•
•
Dissent (Scalia, Thomas, and Roberts)
o From a practical approach to this case, the plaintiff and government agree on what
the outcome of this case should be. Therefore, why is litigation occurring?
o If you create a justiciable controversy when none exists, you’re implying judicial
supremacy over Congress and the Executive
§ The Court should be practicing judicial restraint by ensuring its powers are
coordinate to the other branches, not superior. The role of the courts is to
decide cases, not decide what the law is. Deciding the law is only an
incident of deciding cases.
Dissent (Alito)
o A case/controversy exists but only as BLAG is the petitioner in this case. BLAG
and Hollingsworth were allowed to intervene and both have the real injury in fact
here.
o The invalidation of an act of Congress makes Congress an interested party
sufficient to sustain the Article III case or controversy requirements.
Class Discussion:
We started class with a hypothetical based on a live issue before the Court today. The defendant
credit reporting company published false information about a plaintiff that allegedly did not
cause him any economic or reputational damage. (The defendant reported that the plaintiff had
more educational experience than he actually had.) The plaintiff brought the suit under the Fair
Credit Reporting Act, seeking statutory damages. Does this person have a sufficient injury so as
to justify standing? In a small group, we discussed the impact of Congress creating this right and
if that lessens the standards for standing. Furthermore, are statutory damages appropriate when
there has been no concrete harm yet? Would an injunction be more fitting? In the general class
discussion, we decided the real issue for standing is if the injury is a “concrete” harm. From a
surface view, reporting something beneficial about the plaintiff does not seem to honestly harm
the plaintiff. However, there is also an argument that once a legal right is infringed upon, the
harm has occurred. Potential aspects that may need to be examined are if this is a procedural
right that may have lessened standards of proof, as mentioned in Mass. v. EPA. Gowder seems to
believe that three possible outcomes may result from this case: (1) no standing because there was
no injury; (2) create an injury because violation of legal right created by Congress is an injury in
itself; or (3) any false info published by a person, regardless of the nature, is a harm sufficient for
Note that distinction between this case and Lujan on theory 2) would have to be something
standing.
about how congress can create individualized legal rights but not injuries in the whole world.
We then moved to a discussion of Clapper. The main issue we addressed was if the attorneys
communicating with the targeted and monitored foreign persons had standing to challenge the
statute authorizing the surveillance. The main barrier to Amnesty’s claim is that they have no
actual knowledge that any of their conversations are being monitored because what is being
monitored is kept confidential. They have to speculate about their injury because they have no
means to know if they are being injured! It is reasonable that some of Amnesty’s calls are
probably being monitored, but nonetheless speculative. Some creative lawyering solutions that
Amnesty may have tried included bringing suit to enjoin monitoring in general under any statute,
not just the challenged statute in the case. Gowder presented the idea that Amnesty may have a
claim that they were losing clients as a result of the clients’ fears to call Amnesty because of the
surveillance. This would potentially make the injury more concrete.
We briefly mentioned that the impact of Hollingsworth is that lots of standing questions come up
when nobody defends a suit and the court allows interveners at the trial level. Therefore,
standing is not just a plaintiff issue; it is a defendant issue too when appeals come into play.
With regard to Windsor, the underlying fear in the case for some is that there is collusion
occurring when the executive branch doesn’t defend a case but continues to enforce a law so that
a case or controversy remains. Plaintiff and defendant end up wanting same result despite the
formalities it may take. The Court reasons through this by saying there was nonetheless an injury
in fact to the Treasury (lost tax revenue) if the case was decided for the plaintiff. Furthermore, to
get around case or controversy issue, the courts allowed BLAG (a House committee) to intervene
so there was a defendant.
Last, we did a quick and dirty overview of mootness and ripeness. (More information will be
available on a handout.) Mootness is generally the idea that a case isn’t heard because the harm
is over before the relief sought can be granted. It applies solely to injunctions since damages are
always retrospective. The big exception to this is the idea that even if moot for all practical
purposes, a court may allow a case to proceed if it is “capable of repetition but evading review.”
This is the idea that the case very well could happen again and needs to be decided so that the
law is established before another case arises. Roe v. Wade is the prime example of this. A limit
on this exception is that the actual plaintiff has to show the likelihood of repetition in order to
proceed despite mootness. We considered a hypothetical of Iowa City enacting an ordinance that
allowed for unconstitutional detainment for 48 hours based solely on suspicions. Obviously the
harm would disappear before the case was decided, but it could be repeated. However, the
likelihood that it would be repeated for the specific plaintiff is not that substantial. Other notes
on mootness include that the voluntary end of behavior by a defendant does not moot a case
typically, mainly because a defendant could start back up again with no ruling against his
actions.
Ripeness is simply that there is an injury in fact in the future, but it hasn’t yet occurred and thus
isn’t “ripe” for judicial review. The real issue with this doctrine is that it sounds just like
standing: no injury in fact has yet occurred. Some remaining questions that I had about this
concerned the standards necessary for injunctive relief based on ripeness/standing defenses.
Injunctions are inherently prospective, so where does the court draw the line for making a valid
decision for an injunction based on equity and refusing to hear a case based on
ripeness/standing?
I like the addition of an individual questions
section, very helpful to me to see where people
are!
Outline for February 3, 2016
Case: Baker v. Carr
Facts: Tennessee’s constitution allocated representation for the General Assembly based
on population but it had not been reapportioned since 1901. Due to the lack of
reapportionment and change in the state, Tennessee voters felt the current apportionment
lowered the value of their votes, which violated their equal protection rights.
Procedural History: The voters sought an injunction against further elections. They also
sought the remedy of at-large elections or reapportionment. Lower court denied relief.
Decision: Reversed and Remanded
Holding: Federal Courts can hear cases involving challenges to apportionment when
brought under the equal protection clause.
Reasoning:
-This is not a political question, so the court can answer it.
-Questions brought under the equal protection clause are for the judiciary to determine.
-No other branch of government has a commitment to answer this question.
To get to this reasoning, the court set out standards to allow other courts to know when a
question is a political one (the quotes can be found on page 57, paragraph 3 of the Baker
opinion):
First element: “textually demonstrable constitutional commitment of the issue to
coordinate political department.”
Second element: “a lack of judicially discoverable and manageable standards for
resolving it.”
Third element: “impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion.”
Fourth element: lack of respect of other branches
Fifth element: “unusual need for unquestioning adherence to a political decision
already made.”
Sixth element: potential of branches all saying different things. & of that being unusually problematic in the
given kind of case
The court went through each standard regarding the apportionment issue and decided it
did not fall under any of them, which means the question is not political and therefore the
claim is justiciable. A more concise version of the standard from Professor Gowder is set
out in the class discussion notes below.
Dissent: The dissent argues that while this is brought under the equal protection clause,
you cannot separate that from the fact that apportionment is a political question. The
dissent believes this means that the court now has the power to review any states’
redistricting.
Class Discussion:
Below is a detailed summary of our class discussion. The big three things to note are:
-The Baker Standard – six prongs.
-Idea behind political question doctrine.
-Mandatory v. Prudential political questions.
The class discussion revolved around political questions, which we have one big case for,
Baker v. Carr.
Basic question: Can the courts even hear this kind of case?
Luther v. Gordon case – mentioned in Baker
-Classic political question case
-Two groups competing on which government was lawful for Rhode Island.
Rhode Island was disputing the methods of selecting government. For awhile, Rhode
Island did not have a consensus on a legitimate government.
-Court said it wouldn’t hear the case because it is a political case. The court said it
is up to Congress to decide what the rightful government is.
-Political question doctrine started in this case.
Idea behind political question doctrine: There are some decisions that are the province of
Congress or province of the Executive.
Article four, section four – republican form of government
- Seems like something that should be a job of the legislature because it is kind of
political.
-Courts aren’t in a great place to say whether or not a state has a republican form
of government
Hypo: Suppose that the state of Iowa amends constitution to say: Office of governor
should be heredity from now on. The Branstad family shall occupy the office of governor
through inheritance to the eldest male heir of Terry Branstad and if no male available
then eldest male heir of Paul Gowder.
Small group discussion regarding hypo:
-Who will this be filed against: legislature – who amended the constitution
-Who files this? – any one could file it
-What would their claim be: U.S. constitutional claim
Full class regarding hypo:
-Would there be a standing issue also? – Yes
-Who would get sued?
– One idea is that this would be some kind of a lawsuit against the state.
-“state of Iowa you can’t have that because article 4 section 4 says
the US shall guarantee every state in the union a Republican form of government.”
- article 4, section four sounds like it isn’t supposed to impose
obligations on the states but instead impose obligations on the US.
-Another idea is using privileges and immunities clause – each state has to
have same form of government – Gowder likes this but says stick it in a box.
-Another idea is to sue the United States because this clause imposes an
obligation on them. File suit against congress in some sense. “It is your job to protect
each of the states to protect us from this. Remove King Branstad and restore the Iowa
constitution.” What we are really saying is that the US has to treat a constitutional
Particularly note how the g. clause read as a whole seems to be about
amendment process as a military coup.
protecting states from violent overthrow or conquest
Why might we be worried about a court ordering President to send troops in to rewrite
the constitution of Iowa?
-These are the kinds of questions that are the province of Congress or Executive.
Do we really want SCOTUS organizing and ordering a political revision potentially
carried out with the use of force? The same question would have even come up in the
Luther case.
If we are going to be invading ourselves, we want elected officials making these
decisions. – Idea behind political questions
Result of Baker: Trial Court dismissed it for subject matter jurisdiction and Supreme
Court reversed and remanded.
Baker doesn’t seem like a Luther case or our Branstad hypo.
Looking at 3rd paragraph on p. 57:
-Clue that within the text the court is going to give some sort of test
-First thing to notice – court identifies the political question doctrine with things
that are essentially a function of separation of powers.
Baker Standard:
1. Textual commitment to another branch.
2. Lack of judicially workable standards
3. Policy determination, nonjudicial discretion
4. Lack of respect for coordinate branches
5. Need for unquestioning adherence
6. Mess if branches said different things
Courts consider this standard today when thinking about political question doctrine.
Mandatory political questions and prudential political questions
-Mandatory political questions can be something like a plain separation of powers
requirement. Constitution clearly allocates to Congress or president to make a decision.
Congress cannot change that by allocating it to the courts.
-Prudential political questions could come up with prong 2 or 6. Congress to the
courts: would actually like you to give rulings regarding if there is a judicially workable
standards. Congress can tinker around the margins in political question doctrine.
Hypo: Congress has passed a law: War Powers Resolution. The law is an exercise of
congress’ power to provide regulation for the armed forces and it says US military forces
cannot remain deployed for 2 months without congressional approval. The
constitutionality of the law is an open question. Every president has claimed it is
unconstitutional as a violation of the President being commander in chief.
Obama invades Canada and does not seek approval from congress and it is over two
months. Assume there is standing here somehow.
Congress then brings suit to enjoin the president’s continued use of troops in violation of
the War Powers Resolution.
Small Group Discussion:
They can’t hear case because it is a political question.
Why would Congress even bring this to the court?
Full Class:
Under prong 5 – president already made the decision so it could cause problems to now
have Congress make another decision saying pull the troops.
-Prudential part of the standard
If congress hadn’t explicitly given SCOTUS the power, they would say congress hasn’t
instructed our prudential limitation and even though we think Congress has a legal
question we feel certain congress did not want us to get involved.
p.69 Zivotofsky v. Clinton – can somebody put Israel as their birth state on their passport.
-Court said we need to distinguish between asking us to make a decision about
foreign policy and a decision between power between congress and executive.
Does congress’ law regarding passports interfere with executives power?
Outline for February 3, 2015
Case: Baker v. Carr
Facts and Procedural History: Voters in Tennessee brought this case to federal court in the
1960’s, claiming that their equal protections rights have been violated by the apportionment of
the Tennessee General Assembly. They claimed the apportionment at the time lowered the value
of their votes because of a lack of proper representation, which they alleged made it difficult, if
not impossible, to affect any changed in state law. The allocated representation was based on
population, but the districts had not been reapportioned since 1901 even though there had been
both substantial growth and redistribution of the population.
The voters sought an injunction against further elections until either the districts could be
reapportioned or the federal court directed elections at large. The United States District court for
the Middle District of Tennessee dismissed the complaint, and the voters appealed to the
Supreme Court.
Holding: The Supreme Court reversed the District Court’s ruling. They held that the issue was
not a nonjusticiable “political question,” but that it was a justiciable discrimination case under
the Fourteenth Amendment.
Rationale:
First, the Court addressed the argument that this issue was nonjusticiable because it fell under
Congress’ powers based on the Guaranty Clause (Art. IV, § 4).
To start out, the Court reviewed the political question doctrine in order to differentiate this case
from those covered by the doctrine. They explained that whether a case is a political question
depends on the relationship between the federal judiciary and the federal government, not the
relationship between the federal judiciary and the States. To that end, they established a number
of areas where a case might arise that would not be within the federal judiciary’s power to make
a judgment.
1. Foreign Relations: The Court explained that, while not entirely out of the judiciary’s
jurisdiction, foreign relations issues tend to require the discretionary powers of the Executive or
Legislative branches. They also often require that the Government speak with one voice on the
issue.
2. Validity of Enactments: Here the Court gave several examples of areas of controversy where
the questions are political and not justiciable. They also explained that the issues must be within
one of these areas and not just a political case in order for the issue to be nonjusticiable.
a. When the issue is textually assigned to another branch of government in the Constitution.
b. When there is a lack of judicial standards for resolving the issue
c. When the issue is impossible to resolve without a policy determination of a kind requiring
nonjudicial discretion
d. When the issue requires the possibility of lack of respect for another branch of government
e. When there is a need for unquestioning adherence to a political decision already made
f. When attempting to resolve the issue creates the possibility of embarrassment by having
multiple resolutions by various departments on the same question
3. Republican form of government: The Court used Luther v. Borden as an example of a
Guaranty Clause “political question.” That case established that, under the Guaranty Clause, it
was the province of Congress to decide which government in Rhode Island was the correct one
because it was the province of Congress to guarantee a republican form of government, not the
federal judiciary’s.
The Court differentiated Luther from this case by explaining that the issue here was one of the
consistency of state action with the Constitution, not an issue that required the discretion of
Congress or the Executive branch of government.
Class Discussion
We started the discussion of political questions by discussing the case Baker v. Carr. After
explaining the issue in Baker, we discussed Luther v. Borden as the prime example of a political
question case. Luther was about two groups competing for control of the government in Rhode
Island after the Civil War. The Court refused to hear the case because the issue was the province
of Congress and inherently political.
We then discussed a hypothetical in order to better understand the concept: Suppose Iowa
amends its constitution to "The office of the Governor shall be hereditary for this time forth. The
Branstad family shall pass the gubernatorial office to the eldest male heirs. If none, it shall pass
to the eldest male heir of Paul Gowder." We discussed a variety of possible reasons the court
would not hear a claim against the amendment, including that it is covered by the Guaranty
Clause and thus in the province of Congress, or that it was a general grievance if brought by the
people of Iowa. We also considered the fact that the Iowa Constitution may have been amended
in a republican form, and whether that would have any effect on whether or not a suit could be
brought.
We then discussed the standard created by Baker for determining whether an issue fits in the
political question doctrine.
1. Textually demonstrable constitutional commitment of the issue to a coordinate political
department
i.
Ex: Foreign relations, Art. II
2. OR a lack of judicially discoverable and manageable standards for resolving it
i.
Lack of judicially workable standards
ii.
Problem Ex: Cruel and Unusual punishment vs. republican form of government
3. OR the impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion
i.
Particularly comes up in foreign affairs; comes up in challenges to government’s
recognition or not of foreign states
ii.
Policy determination, nonjudicial discretion
4. OR the impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government
i.
Like #1
ii.
Lack of respect for coordinate branches
5. OR an unusual need for unquestioning adherence to a political decision already made
i.
Like #3
ii.
Ex. Constitutional challenge to a war
iii.
Need for unquestioning adherence
6. OR the potentiality of embarrassment from multifarious pronouncements by various
departments on one question
i.
Would cause a mess if every branch said something different
ii.
Mess if branches said different things
We then discussed another hypothetical to further cement the political question doctrine:
Congress has passed a law during Vietnam War called War Powers Resolution. It allowed the
exercise of Congress' power to provide regulation and appropriations for the armed forces. It
stated that US military forces cannot remain deployed for more than two months without
Congress authorization. The constitutionality of the resolution is still an open question, and also
a possible violation of the President's authority as Commander in Chief. Suppose Barack Obama
invades Canada without seeking authorization from Congress. It’s been 65 days and troops are
still looting Toronto (trying to find the birthplace of Ted Cruz). Assume there is standing. You
show up in federal court and bring a suit to enjoin the president’s use of troops in violation of the
resolution.
In our small group, we decided that it likely was a political question because it was an issue of
constitutional powers, which Congress can define when there is no explicit commitment of the
issue to another branch.
In our large group, we thought that the issue likely fit under #5 in the political question standard
because the president had already made the decision and had boots on the ground. However, the
resolution would need to be interpreted in order to discover whether Congress had given the
courts the power to hear questions relating to this issue. The courts would likely refuse to do so if
they had not.
We then discussed Zivotofsky v. Clinton. This case discussed whether or not someone could put
Israel as their place of birth on their passport when government had not taken a stance on the
placement of Jerusalem. Congress said they could. The Court, however, explained that they
needed distinguish between asking them to make a decision about foreign policy and asking
them to decide the power of the branches.
Day 3: POLITICAL QUESTIONS (02/03/16)
Case: Baker v. Carr
Facts and Procedural History: An outdated system of allocating voters to political
districts outraged Tennessee voters. They claimed these unfair political districts denied
them equal protection of the laws because they were underrepresented. Voters sought an
injunction against any more elections with the old voting districts; they also asked the
court to order reapportionment or elections at large. Alas! the lower court dismissed their
claim because it analogized adjudicating voting districts with adjudicating a political
coup (like in Luther, below)---a.k.a. Sorry, voters, that’s a political question (see,
Guaranty Clause [Article 4: Section 4—also excerpted below]), and we can’t answer it.
Issue: Can the courts even hear this kind of case?
Decision: This claim did not present a nonjusticiable “political question,” so the court
could hear it. (a.k.a. Lower court, you were incorrect; just because the suit seeks to
protect a political right does not mean it presents a political question.)
Holding: a standard for political questions: (see, third paragraph on page 57)
1) textual commitment to another branch: “textually demonstrable
constitutional commitment”
• ex. foreign relations
2) lack of judicially workable standards: “lack of judicially discoverable and
manageable standards for resolving it”
• controversial b/c that’s the gist of the Constitution
3) policy determination, nonjudicial discretion: “impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion”
• ex. foreign affairs
4) lack of respect for coordinate branches: “impossibility of a court’s
undertaking independent resolution without expressing lack of the respect due
coordinate branches of government”
• similar to #1 b/c failure to respect separation of powers
5) need for unquestioning adherence: “unusual need for unquestioning
adherence to a political decision already made”
6) mess if branches said different things: “potentiality of embarrassment from
multifarious pronouncements by various departments on one question”
• ex. constitutional challenge to a war
Other Important Considerations:
*theoretical root of political question è function of the separation of powers (a.k.a.
court’s attempt to respect separation of powers by declining cases that are the province of
another branch)
*note: ponder the implications of the prudential political questions (especially regarding
2, 5, and 6)
Textbook Notes: application of the standard for political questions
1. what about congressional qualifications? (Art. 1, Sec. 5, “each House shall be the
Jude of [the] Qualifications of its own Members”)
a. what congressional qualifications consist of IS NOT a political question
(Powell v. McCormack)
b. note, the Court did not decide if the question of whether a member
satisfied those qualifications was justiciable
2. whether the President has authority to terminate a treaty unilaterally IS a political
question (Goldwater v. Carter)
3. whether an impeachment proceeding violated the Constitution IS a political
question (Nixon v. US)
a. each branch has a distinct role in the impeachment process, so the Court
cannot decide that another branch performed its role improperly
4. what is a reasonable period of time for ratification by the states of a constitutional
amendment proposed by Congress IS a political question (Coleman v. Miller)
5. a US citizen’s lawsuit seeking to vindicate his statutory right IS NOT a political
question (Zivotofsky v. Clinton)
a. background: Congress enacted a statute (providing that Americans born in
Jerusalem may elect to have “Israel” listed as the place of birth on their
passports) that the State Department disagreed with
b. represented a conflict between the executive and legislative branches over
foreign power
c. justiciable because the Court found the sole issue to be the
constitutionality of the statute---the Court can make a decision over
whether Congress’s decision intrudes impermissibly on President’s
domain
The classical political question case:
Luther v. Borden (referenced in Baker v. Carr)
Facts and Holding: Two groups in Rhode Island competed over which one was the
lawful government of the state. The Court could not hear the case because this was
political question.
Rationale: “province of Congress [or the executive]” --- notion that there are some
decisions that are the province of Congress [or executive branch], not of the Court
Relevant text from the Constitution: Article 4: Section 4
“The United States shall guarantee to every state in this union a republican form of
government, and shall protect each of them against invasion; and on application of the
legislature, or of the executive (when the legislature cannot be convened) against
domestic violence.”
Translation: Guaranty Clause = US guarantees each state a republican form of
government]. This section imposes an obligation on the US if there is a threat to the
republican form of government, whether the treat is external or internal. Keep in mind for
the HYPOS, this section does not necessarily impose an obligation on the individual
states.
HYPOTHETICAL SITUATIONS:
HYPO 1: The state of Iowa amends its constitution---the office of the government shall
be hereditary through eldest male heir.
Who could the suit be filed against? (assume away standing requirement) option, the
State of Iowa (BUT the obligation under Art. 4, Sec. 4 imposes obligations on US not
individual states). option, the US.
Will the court hear it? This resembles the Luther case because it raises similar republican
form of government question. Thus, this is a political question; the new Iowa amendment
is addressed in Constitution, which stipulates that it is the legislature’s or executive’s
duty to ensure a republican government.
HYPO 2: Congress passed the War Powers Relation, which as an exercise of Congress’s
power to provide regulations, appropriations, etc. for the armed forces states that US
military forces cannot be deployed for more than two months without Congress’s
approval. However, President Obama sends troops to invade Canada; over two months
pass, yet Obama does not seek authorization from Congress.
Suit? (assume away possible standing issue). suit to enjoin president b/c he is in violation
of War Powers Relation act.
Result? Probably a political question. Under point five of the standard, if Congress had
not explicitly given Court the power, Court would likely assume that Congress did not
want Court to get involved (note: 5 is prudential). Also, challenge to a war is an example
of point 6.
Again these are all very good.
N.b. Just because I don't correct something does not mean it's right; I make corrections here only for things
that I deem worth particular emphasis. -PG