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A Neo-Federalist Approach , 81 Cornell L Cornell Law Review Volume 81 Article 3 Issue 2 January 1996 Justiciability and Separation of Powers: A Neo- Federalist Approach Robert J. Pushaw Jr. Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Robert J. Pushaw Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach , 81 Cornell L. Rev. 393 (1996) Available at: http://scholarship.law.cornell.edu/clr/vol81/iss2/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. JUSTICIABILITY AND SEPARATION OF POWERS: A NEO-FEDERALIST APPROACH RobertJ. Pushaw, Jr.t TABLE OF CONTENTS INTRODUCTION ................................................. 395 I. THE FEDERALIST CONCEPTION OF SEPARATION OF PoWERs AND JUSTICIABiLiTy ...................................... 399 A. The Pre-Constitutional Background ................. 400 1. English Separation-of-Powers Theories............... 400 a. Basic Governmental Fuictions ................. 400 b. Justificationsfor Separation of Powers .......... 402 2. Separation of Powers and PopularSovereignty During the Revolutionary War and Its Aftermath ........... 407 B. Separation of Powers in the Constitution ........... 412 1. Separation of Powers, PopularSovereignty, and Limited National Government ..................... 413 a. SeparatingPower In Coordinate, Independent Branches .................................... 415 b. The Executive andJudiciary as the People's Representatives ............................... 420 c. Limits on JudicialPower ...................... 425 2. Checking and Balancing the Federal Government's Power ........................................... 427 3. PopularSovereignty, Separation of Powers, Checks and Balances, and the Reconciliation of Liberty and Efficiency ........................................ 434 C. Early Supreme Court Decisions on Justiciability and Separation of Powers ............................... 436 1. Hayburn's Case, JudicialReview, Finality, and Standing ........................................ 438 2. The Correspondence of the Justices and Advisory Opinions ........................................ 442 t Associate Professor, University of Missouri School of Law. J.D., Yale, 1988. For their insightful comments on this Article, I would like to thank Akhil Amar, David Eng- dahl, Willy Fletcher, Bill Fisch, Michael Froomkin, Tim Heinsz, Andy Koppelman, Al Neely, Jim Pfander, Clyde Spillenger, and Christina Wells. I am also grateful to Eugene G. Bushmann, W. Dudley McCarter, and Herbert Wolkowitz for funding generous Faculty Research Fellowships through the Missouri Law School Foundation. Last, but not least, my wife Trish deserves special thanks for making this Article possible through her constant support, patience, and encouragement. 394 CORNELL LAW REVIEW [Vol. 81:393 3. Marbury, Separation of Powers, andJudicial Power Over the CoordinateBranches ...................... 444 a. Judicial Control Over the Executive Branch ...................................... 444 b. Judicial Review to Invalidate Acts of Congress... 446 4. The Development of the Political Question Doctrine... 449 D. The Federalist Approach To Separation of Powers, Judicial Review, and Justiciability: A Summary ...... 451 E. Judicial Adherence to the Federalist Paradigm Throughout the Nineteenth Century ............... 452 II. JUSTICIABILITY AND SEPARATION OF POWERS IN THE TWENTIETH CENTURY- A NEO-FEDERALIST CRITIQUE ...... 454 A. The Modem Approach to Justiciability and Separation of Powers: An Overview ................. 455 1. The New "Wilsonian" Democracy ................... 455 2. The New Deal .................................... 456 a. Fundamental Constitutional Changes inthe 1930s ....................................... 456 b. A "NewDeal" forJusticiability: From Brandeis's Prudentialismto Frankfurter's Constitutionalism. 458 3. The Warren Court's Liberalization ofJusticiability ... 464 4. Bickel: The JusticiabilityDoctrines As Unprincipled Devices to Avoid ConstitutionalDecisions ........... 465 5. The Burger and Rehnquist Courts and the FrankfurterianRevival ............................ 467 6. Justiciability and Separation of Powers: A General Neo-Federalist Critique ............................ 467 B. Reformulating the Justiciability Doctrines According to Neo-Federalist Principles .......................... 472 1. Standing and Separation of Powers ................. 472 a. The Injury, Causation, and Redressability Requirements ................................. 472 b. The Court's HistoricalJustiflcation for Standing and Separation of Powers ..................... 477 c. Standing and Separation of Powers: A Neo- FederalistSynthesis ........................... 481 i. Alleged Statutory Violations ................ 481 ii. Constitutional Challenges to PoliticalBranch Actions .................................. 485 2. Mootness and Separation of Powers................. 490 3. Ripeness and Separation of Powers ................. 493 a. The HistoricalDevelopment of Ripeness ......... 494 b. A Neo-FederalistApproach to Ripeness .......... 496 4. Political Questions and Separation of Powers ........ 497 a. The Political Question Doctrine: A Summary ....498 1996] SEPARATION OFPOWERS b. Defects of the Current Doctrine ................. 500 c. A Critique of Political Question Scholarship .................................. 501 d. A Neo-FederalistApproach to Political Questions. 503 5. A Neo-FederalistApproach to Justiciability:A Summary ........................................ 511 CONCLUSION ................................................... 511 INTRODUCTION Over the past generation, the Supreme Court has applied its jus- ticiability doctrines with increasing stringency. Initially, a plaintiff must establish standing by showing that a defendant has personally injured her. Furthermore, the case must be ripe (i.e., well-developed factually and legally) but not moot (i.e., irrelevant because the parties' dispute has ended). Finally, the question presented cannot be "polit- ical," but instead must be capable of "judicial" resolution. When a party lacks standing, presents an unripe or moot claim, or raises a political question, a federal court's rendering of a decision would be a forbidden "advisory opinion." According to the Burger and Rehnquist Courts, these jus- ticiability doctrines "define with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded," and thus demonstrate "'concern about the proper-and properly limited-role of the courts in a democratic society."" In the Court's view, justiciability principles implement the Framers' vision of constitutional democracy by requiring unelected federal judges to leave Congress and the President undisturbed-even when they are allegedly violating the law-unless they happen to injure someone whose dispute with the government is deemed sufficiently vigorous, mature, and nonpolitical. 2 The Court has candidly admitted that its conception of separa- tion of powers and justiciability is "more than an intuition but less than a rigorous and explicit theory,"s as if the point were so obvious as 1 Allen v. Wright, 468 U.S. 737, 750 (1984) (O'ConnorJ.) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975) (PowellJ.)). OtherJustices have written opinions for the Court emphasizing thatjusticiability reflects the Founders' understanding of separation of pow- ers. See, e.g., Reno v. Catholic Social Servs., 509 U.S. 43, 56-59 (1993) (SouterJ.); North- eastern Fla. Chapter of the Assoc. Gen. Contractors v. City ofJacksonville, 508 U.S. 656, 663-64 (1993) (Thomas, J.); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 576-77 (1992) (Scalia,J.); Renne v. Geary, 501 U.S. 312,316-24 (1991) (KennedyJ.); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471-76 (1982) (Rehnquist, J.); United States v. Richardson, 418 U.S. 166, 171-80 (1974) (Burger, C.J.); Sierra Club v. Morton, 405 U.S. 727, 731-40 (1972) (Stewart, J.). See infra part II for analysis of these cases. 2 See infra part ll.A. 3 ALLen, 468 U.S. at 750. to require no further elaboration. This approach reflects unquestion- ing fealty to Justice Felix Frankfurter, who almost singlehandedly de- veloped the modem justiciability doctrines during the middle of this century. Based on slender evidence, Frankfurter asserted that these doctrines were rooted in the Constitution's history and underlying political philosophy, which incorporated English beliefs about the ju- diciary's appropriate function. 4 Like the Court, commentators have failed to provide a rigorous theory of justiciability built upon the Founders' ideas. Indeed, the most influential modem scholar, Alexander Bickel, consciously disre- garded history in arguing that the Court should manipulate the jus- ticiability doctrines to minimize judicial review, "a deviant institution in the American democracy. '5 Other defenses of the Court's position, including an important essay by then-Judge Scalia, have reiterated Jus- tice Frankfurter's claim that justiciability preserves the judiciary's cir- cumscribed role in our democratic system of tripartite governmental powers. 6 Critics of the orthodox wisdom, most notably Erwin Chemer- insky and Martin Redish, have responded that justiciability
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