Political Questions in International Trade: Judicial Review of Section 301?

Total Page:16

File Type:pdf, Size:1020Kb

Political Questions in International Trade: Judicial Review of Section 301? Michigan Journal of International Law Volume 10 Issue 3 1989 Political Questions in International Trade: Judicial Review of Section 301? Erwin P. Eichmann Gary N. Horlick Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Courts Commons, International Trade Law Commons, Legislation Commons, and the President/Executive Department Commons Recommended Citation Erwin P. Eichmann & Gary N. Horlick, Political Questions in International Trade: Judicial Review of Section 301?, 10 MICH. J. INT'L L. 735 (1989). Available at: https://repository.law.umich.edu/mjil/vol10/iss3/1 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. POLITICAL QUESTIONS IN INTERNATIONAL TRADE: JUDICIAL REVIEW OF SECTION 301? Erwin P. Eichmann and Gary N. Horlick Section 301 of the Trade Act of 1974 ("Section 301")' has become an increasingly potent and widely-used tool in the U.S. arsenal of trade policy measures. The past few years have seen a proliferation of Sec- tion 301 cases, affecting the trade of goods and services in Europe, Asia, and Latin America. Even so, in the debate over the Omnibus Trade and Competitiveness Act of 1988 ("Omnibus Trade Act"), Con- gress expressed impatience with the President's discretion in not un- dertaking more Section 301 retaliations. 2 But while much attention has focused on the politics and policy aspects of Section 301, little has been discussed of the legal issues underpinning it. Section 301 provides the President with broad authority to take trade action against unfair foreign conduct. This fact, and experience under Section 301, have promoted the perception that Congress effec- tively abdicated its constitutional power over foreign commerce to the President. But Congress certainly did not grant the President un- checked powers over foreign trade. Quite the contrary, a closer exami- nation of Section 301's statutory provisions reveals that Congress expressly limited the exercise of the President's authority to specific circumstances, particularly those which meet certain statutory defini- tions. Under Section 301, the President may grant relief only from "unfair" foreign trade practices. Since Congress has authorized action only to rectify these specific foreign trade practices, the President may be without authority if the foreign conduct falls outside of the statu- tory definitions. Because the President cannot undertake peacetime (i.e., nonemergency) trade action without Congressional authoriza- tion, the President would have to rely on other statutory grants of authority to impose any other action he may wish to take. This article will argue that U.S. courts may be able to review Executive Branch determinations of the "fairness" of foreign trade conduct as these de- 1. Trade Act of 1974, tit. III, § 301, Pub. L. No. 93-618 (current version at 19 U.S.C. § 2411 (1982)). 2. Bello & Holmer, The Heart of the 1988 Trade Act: A Legislative History of the Amend- ments to Section 301, 25 STAN. J. INT'L L. 1, 10 (1988). Michigan Journal of International Law (Vol. 10:735 terminations form the basis for Presidential authority under Section 301. A major obstacle to judicial review of Section 301, though, is the political question doctrine. Under this label, courts will not adjudicate "political" issues: those which are nonjusticiable or would embarrass the President in the conduct of foreign relations. This article will ana- lyze the justiciability of the unfairness definitions and conclude that while some of the criteria are easily justiciable, others may not be. However, even if some of the statutory criteria are nonjusticiable, a court may sever those questions that are nonjusticiable and continue its review. Secondly, the analysis will reveal that the need for finality of United States actions in foreign affairs causes the greatest political question difficulties, but does not undercut the entire basis of judicial reviewability. Another obstacle to judicial review is the state secrets doctrine. Under this doctrine, courts will not intrude into certain areas of na- tional defense. This article will argue that courts can follow Supreme Court precedent and use their discretion to separate state secrets from trade matters and adjudicate questions of unfair trade conduct. Section 301 carefully limits the President's discretion in setting trade policy. Thus, the statutory criteria of Section 301 fall within that category of questions that courts will review. The first section of this article describes the limits of the President's authority under Sec- tion 301. The second and third sections demonstrate that while polit- ical question, jurisdictional, and state secrets issues provide some serious questions, incantation of "foreign affairs" alone is not enough to prevent judicial review. I. THE NECESSITY FOR CONGRESSIONAL AUTHORIZATION OF EXECUTIVE TRADE ACTION The President does not have an unlimited, unbridled foreign affairs power.3 While the President may have a certain "very delicate, ple- nary and exclusive power" in the field of international relations, 4 Con- gress has explicit constitutional powers to "regulate Commerce with 3. L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION, 64-65 (1972). As Justice Jack- son wrote in his concurring opinion to Youngstown Sheet & Tube Co. v. Sawyer: The example of such unlimited executive power that must have most impressed the forefa- thers was the prerogative exercised by George II1, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. 343 U.S. 579, 641 (1952) (cited with approval in Dames & Moore v. Regan, 453 U.S. 654, 662, (1981)). 4. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-320 (1936). Summer 1989] Political Questions In International Trade foreign Nations" and to "lay and collect Taxes, Duties, Imports and Excises." 5 Most commentators have interpreted this constitutional balance so as to limit the Presidential power over peacetime interna- tional trade to that available under an explicit or implicit grant from Congress. The Supreme Court has examined the limits of Congressional and Executive powers in Youngstown Sheet and Tube v. Sawyer.6 In that case, the Court invalidated President Truman's siezure of domestic steel mills, even though Truman claimed that the continued operation of the mills was necessary for the Korean War effort. Writing for the court, Justice Black found that "[tihe President's power, if any, to is- sue the order must stem from either an act of Congress or the Consti- tution itself."' 7 Thus, under the reasoning of Black's majority opinion, the President can only undertake such trade retaliation as Congress or the Constitution has authorized. Elaborating on Black's limitation of the President's powers, Justice Jackson, in an oft-quoted concurrence to Youngstown, identified three types of Presidential action. In the first category, as in the majority opinion, "[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it in- cludes all that he possesses in his own right plus all that Congress can delegate." 8 Without Congressional authorization, Presidential action 5. U.S. CONST. art. I, § 8, cl. 1, 3. 6. 343 U.S. 579 (1952). 7. Id. at 585. The Court's rationale for overturning the President's order appears to overturn Justice Sutherland's dictum that gave the President an independent foreign relations power. Cur- tiss- Wright, supra note 4, at 319-20. Sutherland had based the President's foreign relations power on a transfer of sovereignty from the King of England to the President of the United States. Justice Black, by finding that the President's power may only come from Congress or the Consti- tution, implicitly overruled Sutherland's view of the President attaining power through the pas- sage of sovereignty. However, Black never explicitly mentions or cites Curtiss-Wright, even though it had been decided only sixteen years earlier. 8. Youngstown, supra note 3, at 635. See Dames & Moore v. Regan, 453 U.S. 654, 670-89 (1981), where Justice Rehnquist minutely analyzed the Congressional intent behind the Interna- tional Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. § 1702 (Supp. V 1987), and the Hostages Act in upholding the President's settlement of the Iran hostage crisis. The Court evi- dently would rather find Congressional authorization for the President's foreign affairs powers than analyze a clash of authorizations. See also Rehnquist and Stewart's comments during the oral argument of Dames & Moore. Rehnquist was concerned that an unlimited foreign affairs power would allow the President to negate provisions of the Bill of Rights. He asked, "What if the agreement provided that for one year no one should criticize the Ayatollah?" The attorney for Iran replied, "Then the United States would be obliged to attempt to accomplish that." Furthermore, as the Solicitor General's theory of Presidential power appeared to provide no limits, Justice Powell remarked, "[t]he Pres- ident could have exchanged you [Solicitor General Rex Lee] for one of the hostages - you or me." N.Y. Times, June 25, 1981, at D3, col. 1,
Recommended publications
  • Baker V. Carr (1962)
    Baker v. Carr (1962) Baker v. Carr (1962) Argued: April 19–21, 1961 Re-argued: October 9, 1961 Decided: March 26, 1962 Background In the U.S. each state is responsible for determining its legislative districts. For many decades states drew districts however they wanted. By the 1950s and 1960s, questions arose about whether the states’ division of voting districts was fair. Many states had not changed their district lines in decades. During that time many people moved from rural areas to cities. As a result, a significant number of legislative districts became uneven—for example, a rural district with 500 people and an urban district with 5,000 people each would have only one representative in the state legislature. Some voters filed lawsuits to address the inequities, but federal courts deferred to state laws and would not hear these cases. Federal courts did not hear these cases because they were thought to be “political” matters. Courts were reluctant to interfere when another branch of government (the executive or legislative) made a decision on an issue that was assigned to it by the Constitution. For example, if the president negotiated a treaty with another country (a power granted to the president by the Constitution), the courts would generally not decide a case questioning the legality of the treaty. The power of state legislatures to create voting districts was one of those “political questions” that the courts traditionally had avoided. This is a case about whether federal courts could rule on the way states draw their state boundaries for the purpose of electing members of the state legislature.
    [Show full text]
  • Guantanamo, Boumediene, and Jurisdiction-Stripping: the Mpei Rial President Meets the Imperial Court" (2009)
    University of Minnesota Law School Scholarship Repository Constitutional Commentary 2009 Guantanamo, Boumediene, and Jurisdiction- Stripping: The mpI erial President Meets the Imperial Court Martin J. Katz Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Katz, Martin J., "Guantanamo, Boumediene, and Jurisdiction-Stripping: The mpeI rial President Meets the Imperial Court" (2009). Constitutional Commentary. 699. https://scholarship.law.umn.edu/concomm/699 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT Martin J. Katz* INTRODUCTION In Boumediene v. Bush,1 the Supreme Court struck down a major pillar of President Bush's war on terror: the indefinite de­ tention of terror suspects in Guantanamo Bay, Cuba. The Court held that even non-citizen prisoners held by the United States government on foreign soil could challenge their confinement by seeking a writ of habeas corpus in federal court, and that the procedures the government had provided for such challenges were not an adequate substitute for the writ." As a habeas corpus case, Boumediene may well be revolu­ tionary.3 However, Boumediene is more than merely a habeas * Interim Dean and Associate Professor of Law. University of Denver College of Law; Yale Law School. J.D. 1991: Harvard College. A.B. 1987. Thanks to Alan Chen.
    [Show full text]
  • Trade and the Separation of Powers Timothy Meyer
    Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2019 Trade and the Separation of Powers Timothy Meyer Ganesh Sitaraman Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the International Law Commons, and the International Trade Law Commons Recommended Citation Timothy Meyer and Ganesh Sitaraman, Trade and the Separation of Powers, 107 California Law Review. 583 (2019) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1093 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. +(,121/,1( Citation: Timothy Meyer; Ganesh Sitaraman, Trade and the Separation of Powers, 107 Calif. L. Rev. 583 (2019) Provided by: Vanderbilt University Law School Content downloaded/printed from HeinOnline Wed Jun 5 12:21:18 2019 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device Trade and the Separation of Powers Timothy Meyer* & Ganesh Sitaraman** There are two paradigms through which to view trade law and policy within the American constitutionalsystem.
    [Show full text]
  • VIETH V. JUBELIRER
    (Slip Opinion) OCTOBER TERM, 2003 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus VIETH ET AL. v. JUBELIRER, PRESIDENT OF THE PENNSYLVANIA SENATE, ET AL. APPEAL FROM UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA No. 02–1580. Argued December 10, 2003—Decided April 28, 2004 After Pennsylvania’s General Assembly adopted a congressional redis- tricting plan, plaintiffs-appellants sued to enjoin the plan’s imple- mentation, alleging, inter alia, that it constituted a political gerry- mander in violation of Article I and the Fourteenth Amendment’s Equal Protection Clause. The three-judge District Court dismissed the gerrymandering claim, and the plaintiffs appealed. Held: The judgment is affirmed. 241 F. Supp. 2d 478, affirmed. Justice SCALIA, joined by THE CHIEF JUSTICE, JUSTICE O’CONNOR, and JUSTICE THOMAS, concluded that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist. They would therefore overrule Davis v. Bandemer, 478 U. S. 109, in which this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard for assessing political gerrymandering claims. Pp. 4–37. (a) Political gerrymanders existed in colonial times and continued through the framing.
    [Show full text]
  • Page 429 TITLE 19—CUSTOMS DUTIES Ments Relating to the Return As the Secretary Shall Prescribe
    Page 429 TITLE 19—CUSTOMS DUTIES ments relating to the return as the Secretary Sec. shall prescribe; or 2114e. Negotiation of agreements concerning high (2) if not returned to the country of origin, technology industries. be disposed of in the manner prescribed by law 2115. Bilateral trade agreements. 2116. Agreements with developing countries. for articles forfeited for violation of the cus- 2117. International safeguard procedures. toms laws. 2118. Access to supplies. (Pub. L. 92–587, title II, § 203, Oct. 27, 1972, 86 2119. Staging requirements and rounding author- Stat. 1297.) ity. § 2094. Rules and regulations PART 2—OTHER AUTHORITY The Secretary shall prescribe such rules and 2131. Authorization of appropriation for GATT re- vision. regulations as are necessary and appropriate to 2132. Balance-of-payments authority. carry out the provisions of this chapter. 2133. Compensation authority. (Pub. L. 92–587, title II, § 204, Oct. 27, 1972, 86 2134. Two-year residual authority to negotiate du- Stat. 1297.) ties. 2135. Termination and withdrawal authority. § 2095. Definitions 2136. Reciprocal nondiscriminatory treatment. 2137. Reservation of articles for national security For the purposes of this chapter— or other reasons. (1) The term ‘‘Secretary’’ means the Sec- 2138. Omitted. retary of the Treasury. (2) The term ‘‘United States’’ includes the PART 3—HEARINGS AND ADVICE CONCERNING several States, the District of Columbia, and NEGOTIATIONS the Commonwealth of Puerto Rico. 2151. Advice from International Trade Commission. (3) The term ‘‘pre-Columbian monumental or 2152. Advice from executive departments and other architectural sculpture or mural’’ means— sources. (A) any stone carving or wall art which— 2153. Public hearings.
    [Show full text]
  • The Judicial Answer: Treatment of the Political Question Doctrine in Alien
    The Judicial Answer? Treatment of the PoliticalQuestion Doctrine in Alien Tort Claims Amy Endicott* I. 1 INTRODUCTION: "QUESTIONS, IN THEIR NATURE POLITICAL" After Sosa v. Alvarez-Machain, the plaintiff who successfully asserts a claim under the Alien Tort Statute (ATS) may have reason to rejoice, but the struggle for adjudication does not end with the grant of jurisdiction.2 The international scope of ATS claims leaves broadly pleaded complaints vulnerable to dismissal on "political question" grounds. 3 The Supreme Court first articulated the political question doctrine in Marbury v. Madison, when it held that the constitutional separation of powers renders certain claims nonjusticiable because adjudicating those claims would encroach on the powers of the political branches. 4 The ATS, as a jurisdictional vehicle for asserting violations of the law of nations, often necessitates this political question analysis. 5 Realizing the . Amy Endicott is a 2011 J.D. Candidate at the University of California Berkeley, School of Law. Special thanks to Professors David Caron, Richard Buxbaum and Daniel Farber for their comments and support and to David Wallach and Anderson Berry for their insight. 1. Marbury v. Madison, 5 U.S. 137, 170 (1803). 2. Sosa v. Alvarez-Machain, 542 U.S. 692, 724, 732 n.21 (2004) (limiting the range of causes of action available under the ATS and cautioning that any cause of action is still subject to the need for "deference to the executive."). 3. See Alperin v. Vatican Bank, 410 F.3d 532, 560 (9th Cir. 2005) (explaining that the ability to adjudicate claims depends on the context in which they are presented).
    [Show full text]
  • Case 8:18-Cv-00891-PWG Document 49 Filed 09/04/18 Page 1 of 20
    Case 8:18-cv-00891-PWG Document 49 Filed 09/04/18 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. No. 8:18-cv-00891 PWG BUREAU OF THE CENSUS, et al., Defendants. REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Case 8:18-cv-00891-PWG Document 49 Filed 09/04/18 Page 2 of 20 TABLE OF CONTENTS INTRODUCTION ........................................................................................................................................... 1 ARGUMENT..................................................................................................................................................... 2 I. THIS CASE IS NOT JUSTICIABLE .............................................................................................. 2 A. Plaintiffs Lack Standing to Maintain this Action. .............................................................. 2 1. Plaintiffs Have Failed To Plausibly Allege a Concrete, Particularized Injury in Fact. ............................................................................................................ 2 2. Plaintiffs Have Failed to Plausibly Allege That Their Purported Injuries Are Traceable to Any Action of Defendants. ........................................ 4 3. Plaintiffs Have Failed to Plausibly Allege That Their Actions Are Redressable By Any Action of This Court. ........................................................... 5 B. Plaintiffs’ Claim is Not Ripe.
    [Show full text]
  • The Political Question Doctrine: Justiciability and the Separation of Powers
    The Political Question Doctrine: Justiciability and the Separation of Powers Jared P. Cole Legislative Attorney December 23, 2014 Congressional Research Service 7-5700 www.crs.gov R43834 The Political Question Doctrine: Justiciability and the Separation of Powers Summary Article III of the Constitution restricts the jurisdiction of federal courts to deciding actual “Cases” and “Controversies.” The Supreme Court has articulated several “justiciability” doctrines emanating from Article III that restrict when federal courts will adjudicate disputes. One justiciability concept is the political question doctrine, according to which federal courts will not adjudicate certain controversies because their resolution is more proper within the political branches. Because of the potential implications for the separation of powers when courts decline to adjudicate certain issues, application of the political question doctrine has sparked controversy. Because there is no precise test for when a court should find a political question, however, understanding exactly when the doctrine applies can be difficult. The doctrine’s origins can be traced to Chief Justice Marshall’s opinion in Marbury v. Madison; but its modern application stems from Baker v. Carr, which provides six independent factors that can present political questions. These factors encompass both constitutional and prudential considerations, but the Court has not clearly explained how they are to be applied. Further, commentators have disagreed about the doctrine’s foundation: some see political questions as limited to constitutional grants of authority to a coordinate branch of government, while others see the doctrine as a tool for courts to avoid adjudicating an issue best resolved outside of the judicial branch. Supreme Court case law after Baker fails to resolve the matter.
    [Show full text]
  • Read the Full Report
    The Smoot-Hawley Fixation: Putting the Sino-US Trade War in Contemporary and Historical Perspective Simon J. Evenett1 University of St. Gallen, the St. Gallen Endowment for Prosperity Through Trade2 and CEPR 29 September 2019 This paper was published in the Journal of International Economic Law on 6 December 2019. Unfortunately, the published version excluded many of the pertinent footnotes that lawyers love and that, more importantly, support key elements of the argument. For this reason we make the full version of the paper available here. 1 Professor of International Trade and Economic Development, Department of Economics, University of St. Gallen, Switzerland, and Coordinator, the Global Trade Alert, the independent commercial policy monitor. I thank Patrick Buess, Johannes Fritz, Maxime Kantenwein, and Piotr Lukaszuk for help preparing the empirical evidence for this paper. I thank Anne van Aaken, Chad Bown, Andrew Lang, two referees, and Piotr Lukaszuk for comments on an earlier draft of this paper. I also thank Doug Irwin, Kevin O’Rourke, and Niko Wolf for checking my characterisation of the economic history literature on trade policy developments in the 1930s. All remaining errors are mine. Comments are welcome and should be sent to [email protected]. 2 Founder of the new non-profit Foundation to house the Global Trade Alert and other commercial policy- related initiatives. Abstract The extent to which the Sino-US trade war represents a break from the past is examined. This ongoing trade war is benchmarked empirically against the Smoot-Hawley tariff increase and against the sustained, covert discrimination by governments against foreign commercial interests witnessed since the start of the global economic crisis.
    [Show full text]
  • Supreme Court of the United States
    No. 16-1161 In The Supreme Court of the United States BEVERLY R. GILL, ET AL., Appellants, v. WILLIAM WHITFORD, ET AL., Appellees. On Appeal from the United States District Court for the Western District of Wisconsin BRIEF OF AMICI CURIAE TENNESSEE STATE SENATORS IN SUPPORT OF APPELLANTS John L. Ryder Counsel of Record Pablo Adrian Varela Harris Shelton Hanover Walsh, PLLC 40 South Main Street, Suite 2700 Memphis, Tennessee 38103 901.545.1455 [email protected] Linda Carver Whitlow Knight Gullett Sanford Robinson & Martin, PLLC 150 Third Avenue South, Suite 1700 Nashville, TN 37201 615.244.4994 [email protected] Counsel for Amici Curiae Dated: August 3, 2017 LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477 ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES………………………….. iv INTERESTS OF THE AMICI CURIAE…………….. 1 SUMMARY OF ARGUMENT………………………… 3 ARGUMENT…………………………………………….. 5 I. Colonial America through the Founding….. 5 II. Gerrymander and the Constitution………... 9 A. The Constitutional Convention………. 9 B. The State Ratifying Conventions…… 12 III. The Early Republic to 1842……………..… 16 A. Early State Approaches to Gerrymandering………………………. 16 1. Gerrymandering in the States…………………………..…. 16 2. States that Took Steps to Avoid Gerrymandering……………...…. 19 3. Later Effects of State Gerrymandering……………….... 20 iii IV. Congressional and State Reapportionment 1842-1962…………………………………….. 22 A. Congressional Oversight of Gerrymandering………………………. 22 B. Legislation in the States……………... 24 C. Later Congressional Action………….. 25 V. The Modern Era………………………....….. 30 VI. Fruitless Search for Manageable Standards…………………………………….. 33 VII. Proportionality………………………............ 39 CONCLUSION………………………………………… 41 iv TABLE OF AUTHORITIES Cases Page(s) Anderson v. Jordan, 343 U.S.
    [Show full text]
  • Is the Political Question Doctrine Jurisdictional Or Prudential? Ron Park
    UC Irvine Law Review Volume 6 Article 9 Issue 2 The New Legal Realism at Ten Years 6-2016 Is the Political Question Doctrine Jurisdictional or Prudential? Ron Park Follow this and additional works at: https://scholarship.law.uci.edu/ucilr Recommended Citation Ron Park, Is the Political Question Doctrine Jurisdictional or Prudential?, 6 U.C. Irvine L. Rev. 255 (2016). Available at: https://scholarship.law.uci.edu/ucilr/vol6/iss2/9 This Note is brought to you for free and open access by UCI Law Scholarly Commons. It has been accepted for inclusion in UC Irvine Law Review by an authorized editor of UCI Law Scholarly Commons. Park FINAL [4.6.17] (Do Not Delete) 4/14/2017 5:44 PM Is the Political Question Doctrine Jurisdictional or Prudential? Ron Park* In Corrie v. Caterpillar, Inc., the family members of protestors killed or injured by bulldozers driven by the Israeli Defense Forces sued the manufacturer of the bulldozers in federal district court. The Ninth Circuit affirmed the dismissal of the lawsuit after holding the issues nonjusticiable under the political question doctrine. In doing so, the Ninth Circuit held that the political question doctrine was jurisdictional. As of this moment, only the Ninth Circuit has explicitly answered the question of whether the political question doctrine is jurisdictional or prudential. The Supreme Court has not answered that question and no other Circuit Court of Appeals has done so either. This Note attempts to answer that question by making the factors articulated in the Supreme Court’s key opinion on the political question doctrine, Baker v.
    [Show full text]
  • The Secret Life of the Political Question Doctrine
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2004 The Secret Life of the Political Question Doctrine Louis Michael Seidman Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/563 37 J. Marshall L. Rev. 441-480 (2004) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Jurisprudence Commons, and the Law and Politics Commons THE SECRET LIFE OF THE POLITICAL QUESTION DOCTRINE LOUIS MICHAEL SEIDMAN· "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be . made in this court."l The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy,2 and the opinion for the Court was a carefully crafted political document-"a masterwork of indirection," according to Robert McCloskey's well­ known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seemingly to court it, to advance in one direction while his opponents are looking in another. ,,3 The purpose of this essay is to explore the many layers of this irony. I will argue that despite all of the premature reports of its demise, the political question doctrine is as central to modern • Professor of Law, Georgetown University Law Center.
    [Show full text]