Political Question Doctrine Research Articles

Multi-Tiered Political Questions: The Ecj's Mandate in Enforcing Subsidiarity

AbstractThis article aims at clarifying the practice of judicial review of subsidiarity, which is widely held to be either injusticiable, or only to a very low extent. These objections contra subsidiarity review will be framed under the political question doctrine, and addressed in order to ameliorate the legal enforcement of subsidiarity. In a first section, subsidiarity will be construed as a regulative structural principle in a framework of multi-layered government. Art. 5(3) TEU functions as an instance of the broader principle. Secondly, the doctrine of political questions is explained and applied to the case of subsidiarity review in order to classify various arguments precluding review. Two objections surface as predominant: the impetus of judicial self-restraint and the methodological problem of a failing standard of review. I will contend that in a multi-layered framework pluralism necessitates judicial engagement, thereby rendering the mandate of the ECJ more broad. Secondly, the intensity of re...

The Sweet Taste of Defeat: American Electric Power Co v. Connecticut and Federal Greenhouse Gas Regulation

I. INTRODUCTION II. MASSACHUSETTS v. EPA AND ITS AFTERMATH A. The 2007 Opinion B. Regulatory Aftermath III. AMERICAN ELECTRIC POWER V. CONNECTICUT A. Impact on EPA's Clean Air Act Authority B. Potential Impact on Proposals to Amend Away EPA Authority IV. WHAT NEXT? REDUCING GREENHOUSE GASES THROUGH STATE PUBLIC NUISANCE ACTIONS V. CONCLUSION I. INTRODUCTION Despite increasingly dire warnings from scientists, the United States Congress has been unable to pass comprehensive legislation to reduce climate altering greenhouse gases. In the absence of new federal legislation, states, cities, and nonprofits have petitioned and sued administrative agencies to regulate pursuant to existing environmental laws. Under former President Bush, executive agencies largely rebuffed these efforts, prompting litigation by environmental plaintiffs. In response to judicial determinations and citizen petitions, as well as by virtue of its own policies, the Environmental Protection Agency under President Obama began regulating greenhouse gases pursuant to the Clean Air Act. Political and legal attacks followed swiftly, with opponents charging that the Agency had exceeded its mandate and politicians proposing legislation to incapacitate the Agency. Meanwhile, plaintiffs have also sued power producers in state and federal common law tort actions characterizing greenhouse gas emissions as a nuisance. This cause of action--which creates liability for an unreasonable interference with a right common to the general public (1)--was used to abate pollution long before the advent of the administrative state. (2) Although nuisance lawsuits are often viewed as a distinct predecessor to regulation under modern federal environmental statutes, this article argues that these common law actions can significantly influence development of a federal regulatory regime for greenhouse gases. In the midst of the battle over climate change regulation, the Supreme Court issued its 2011 decision in American Electric Power v. Connecticut (AEP) (3) holding that the federal common law nuisance cause of action relied upon by the plaintiffs had been displaced by the Clean Air Act. Many headlines touted the decision as a win for utilities, highlighting the Court's rejection of states' and environmentalists' claims against the five largest electricity generators in the United States. (4) Yet, such attention to the formal outcome missed the real import of the case. By strongly reaffirming the Court's 2007 decision in Massachusetts v. EPA, Justice Ginsburg's brief opinion strengthened the Environmental Protection Agency's (EPA's) authority to regulate greenhouse gases under the Clean Air Act. Moreover, because the Court held that displacement of nuisance claims under federal common law hinges on EPA's authority to regulate greenhouse gases, the decision impedes congressional Republicans' efforts to obstruct EPA's climate change efforts by amending the Act. Meanwhile, the Court did not decide whether or not the Clean Air Act preempts nuisance actions brought under state law, leaving intact another possible tort avenue for plaintiffs. By bolstering EPA's nascent efforts to regulate greenhouse gases, the decision appreciably advances the development of a federal regulatory regime to address climate change. Other aspects of the case--less a focus of this discussion--support environmental plaintiffs more broadly. By affirming the Second Circuit on jurisdictional questions, the American Electric Power opinion solidified the Court's 2007 holding in Massachusetts v. EPA that the injuries caused by climate change and their incremental redress provide an appropriate basis for standing to sue. In addition, the affirmance undermined claims (beginning to gain traction in some courts) that the political question doctrine prevents courts from reaching the merits of climate change suits. …

The Khulumani Litigation: Complementing the Work of the South African Truth and Reconciliation Commission

The Khulumani case, a case brought under the 1789 Alien Tort Claims Act (ATCA) by victims of Apartheid represents one of the most ambitious attempts by victims to obtain reparations. The victims in this case are charging a number of multinational companies with aiding and abetting the Apartheid government. This article will consider the nature of the Khulumani case and its prospects for success. The article focuses specifically on the 'aiding and abetting' aspect of the Khulumani case. The various approaches in the Khulumani litigation as to whether the defendants' conduct constitutes aiding and abetting in international law will be discussed. The relevance and influence of the 'political question' doctrine will also be discussed. It will be argued that it is fitting and correct for aiding and abetting in international law to be applied to corporations. It will further be argued that the Second Circuit case and the subsequent District Court Decision by Judge Scheindlin represent a development in the approach to the political question doctrine in the United States. Thereafter, the article will consider whether the Khulumani case its into the concept of a mass claims procedure. The author argues that the Khulumani litigation continues the work of the Truth and Reconciliation Commission and complements it. The payment of reparations has been described as the 'unfinished legacy' of the Truth and Reconciliation Commission. To the extent that ATCA can facilitate the payment of reparations, it can be considered a mechanism of transitional justice.

Avoidance Techniques: State Related Defences in International Antitrust Cases

Despite its economic significance, competition law still remains fragmented, lacking an international framework allowing for dispute settlement. This, together with the growing importance of non-free-market economies in world trade require us to re-consider and re-evaluate the possibilities of bringing an antitrust suit against a foreign state. If the level playing field on the global marketplace is to be achieved, the possibility of hiding behind the bulwark of state sovereignty should be minimised. States should not be free to act in an anti-competitive way, but at present the legal framework seems ill-equipped to handle such challenges.This paper deals with the defences available in litigation concerning transnational anti-competitive agreements involving or implicating foreign states. Four important legal doctrines are analysed: non-justiciability (political question doctrine), state immunity, act of state doctrine and foreign state compulsion. The paper addresses also the general problem of applicability of competition laws to a foreign state as such. This is a tale about repetitive unsuccessful efforts to sue OPEC and recent attempts in the US to deal with export cartels of Chinese state-owned enterprises.

The Political Question Doctrine: An Update in Response to Climate Change Case Law

The United States has failed to enact climate change legislation to regulate greenhouse gases despite the near consensus that anthropogenic climate change is occurring. In the wake of this failure, various private parties and states have initiated “climate change nuisance” litigation for harms incurred due to climate change. Unfortunately, several climate change nuisance cases were dismissed at the district court level due to a flawed application of the political question doctrine. These cases exemplify the scholarly debate and discontent surrounding the current formulation of the political question doctrine. Scholars do generally agree that contentious and politically charged disputes involving novel legal theories do not necessarily implicate the doctrine. However, due to the broad nature of the doctrine in its current form, it has been erroneously applied to the politically charged, but judiciable, climate change litigation cases. This Comment suggests a re-articulated political question doctrine, which captures the purpose of the doctrine while also acting to limit its application to truly nonjudicial political questions. The key to this formulation is its foundation: it rests not only on the classical origin of the doctrine, but also on principles upon which our judiciary is based.

The Political Question Doctrine: An Update in Response to Climate Change Case Law

The United States has failed to enact climate change legislation to regulate greenhouse gases despite the near consensus that anthropogenic climate change is occurring. In the wake of this failure, various private parties and states have initiated “climate change nuisance” litigation for harms incurred due to climate change. Unfortunately, several climate change nuisance cases were dismissed at the district court level due to a flawed application of the political question doctrine. These cases exemplify the scholarly debate and discontent surrounding the current formulation of the political question doctrine. Scholars do generally agree that contentious and politically charged disputes involving novel legal theories do not necessarily implicate the doctrine. However, due to the broad nature of the doctrine in its current form, it has been erroneously applied to the politically charged, but judiciable, climate change litigation cases. This Comment suggests a re-articulated political question doctrine, which captures the purpose of the doctrine while also acting to limit its application to truly nonjudicial political questions. The key to this formulation is its foundation: it rests not only on the classical origin of the doctrine, but also on principles upon which our judiciary is based.

Civil Litigation and Transnational Business: An Alien Tort Statute Primer

This article examines efforts in the United States to hold corporations and corporate officers accountable for egregious human rights and humanitarian law violations using the Alien Tort Statute (ATS). It traces the evolution of ATS jurisprudence since the landmark Filartiga v. Pena-Irala case, giving particular attention to successful cases against non-state actors which led to the filing of the first corporate cases in the mid-1990s. In so doing, it highlights the linkages between the developments in international law (human rights, humanitarian and criminal law) and ATS case law. It then provides an overview of ATS corporate cases, demonstrating the range of violations and circumstances that have given rise to civil cases brought in US courts against corporations. Finally, it highlights current issues and challenges facing litigators seeking to hold corporations liable for damages through the ATS. These challenges include invocation of the political question doctrine or forum non conveniens arguments in an effort to have cases dismissed, and questions about whether corporations can be held liable for aiding and abetting international violations, and if so, what the appropriate source or test for aiding and abetting is under the ATS. Notably, among the questions being raised by at least one court, in the wake of the Supreme Court’s Sosa v. Alvarez-Machain decision, is whether corporations can be held liable under international criminal law.

2009 Year in Review: Constitutional Law

Key issues at the intersection of constitutional and environmental, energy, and natural resources law in 2009 include Standing, the dormant Commerce Clause, the Political Question Doctrine, Preemption, the Takings, Due Process, and Free Speech Clauses.

Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine

This essay, forthcoming in the North Carolina Law Review, describes the transformation of the political question doctrine and the law of standing from flexible standards, suitable as techniques identified first by Alexander Bickel for the prudent exercise of political judgment by the Supreme Court, into true legal doctrines, whose relative rigidity makes their use as prudential avoidance devices difficult. The essay uses Bush v. Gore to illustrate the fact that doctrinalization has done much to eliminate justiciability concepts as vehicles for exercising prudent judgment, showing that the Court ignored substantial and interesting political question and standing issues in the case. The essay concludes by arguing that justiciability concepts as vehicles for prudent judgment fit well into the historical and political context in which Bickel wrote, and that their disappearance fits equally well with the historical and political context of today's Court and its (and our) acceptance of a strong theory of judicial supremacy.

The Mismatch Between Public Nuisance Law And Global Warming

This article makes three principal points regarding the recent efforts to use public nuisance litigation to address the problem of climate change. First, the courts should not invoke the political question doctrine to dismiss such cases but instead focus on lack of private party standing and the impossibility of proving causation as grounds for dismissal. Second, the courts and commentators would better understand the disadvantages of common law litigation as a means of addressing climate change if they conceptualized climate change as not a traditional pollution problem with a polluter and victim of pollution but rather as a large-scale commons resource management problem. Finally, state legislative action to address climate change is likely to be more effective and less overreaching than regulation via public nuisance litigation, and may be needed to prompt responsible action by the federal political branches. The courts can facilitate responsible state legislative action by following approaches to fede...

It's My News Too! Online Journalism and Discriminatory Access to the Congressional Press Gallery

Since March 2007, dozens of newspapers have gone out of business entirely, and still others, like the Seattle Post-Intelligencer, the Capital Times, and the Christian Science Monitor have moved to the internet to stay afloat. Since 1990, a quarter of all American newspaper jobs have disappeared. Despite its three hundred year existence, the American newspaper is being devastated in the span of a decade. Meanwhile, the internet is becoming the go-to source for news, information, weather, movie reviews, and classified advertisements. Congress and the courts can no longer afford to relegate internet journalism to a second-class news medium. In Consumers Union v. Periodical Correspondence Association, the question arose as to the constitutionality of certain rules governing the issuance of press credentials to the congressional press galleries. In that case, based on separation of powers concerns, the court avoided the issue with the political question doctrine. Since then, many courts have taken a similar path when faced with the exclusion of a journalist from an established press facility. Given the switch from traditional print media to websites and Kindles, the question of who has access to the news becomes extremely important. This article will address several issues relating to the freedom of access to the Periodical Press Gallery. The first part of the article will briefly describe the history of the press and the history of congressional reporting leading up to the passage of the Periodical Press Gallery Rules. Part two of the article will describe the rules that govern admission to the Periodical Press Gallery as they exist today. Part three will describe the nature of the right afforded to journalists to access government buildings which have already been opened up to the press. Cases within this section challenge the denial of access to the White House, the Periodical Press Galley, and the Guantanamo Bay detention facility. Discussion in this section will reveal how the D.C. Circuit Court has used the political question doctrine to avoid deciding these press gallery cases on their merits, while taking a deferential approach to denials from other established press pools. Because I believe that Consumers Union was wrongly decided, the final section will address how the courts should decide cases which stem from a denial of admission to the galleries. If the courts still refuse to decide these cases on nonjusticiability grounds, I will argue why Congress should unilaterally refine its rules to cabin the discretion of the Executive Committee and permit more online journalists to enter the Periodical Press Gallery. This section will describe how the current Press Gallery Rules act as an unconstitutional obstacle to the First Amendment rights of online journalists, as well as a Fifth Amendment violation of Due Process. Lastly, I will detail a few substantive amendments to the existing Rules which would provide for a fairer review of an online-journalist’s application.

Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political question doctrine as a defense. The political question doctrine addresses whether the judiciary should review government action or decisions and yet contractors are asserting the doctrine in cases where the government is not a named party and has remained conspicuously silent. This article analyzes the confused application of the political question doctrine to battlefield related contractor tort litigation and proposes a methodology to bring clarity to future decisions. Absent a more rigid analytical approach by the judiciary and a change in the government's attitude, the confusion surrounding the political question doctrine and the inconsistency of its application to the inevitable future contractor cases will only grow.

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political question doctrine as a defense. The political question doctrine addresses whether the judiciary should review government action or decisions and yet contractors are asserting the doctrine in cases where the government is not a named party and has remained conspicuously silent. This article analyzes the confused application of the political question doctrine to battlefield related contractor tort litigation and proposes a methodology to bring clarity to future decisions. Absent a more rigid analytical approach by the judiciary and a change in the government's attitude, the confusion surrounding the political question doctrine and the inconsistency of its application to the inevitable future contractor cases will only grow.

Should Constitutional Courts Adjudicate Political Disputes? The Perspectives of Democratization in Soviet Successor States

AbstractThis article explores the consequences and the opportunities of political involvement of constitutional courts in post-Soviet countries. The answers to this inquiry allow a discussion on institutional design alternatives that would help constitutional courts to better support democracy. The author identifies particular practical difficulties with the present institutional settings (referring to them as to a 'paradox of political empowerment') and investigates the options for addressing the limitations created by the described model. In particular, the article reconsiders the widely accepted opinion that constitutional designers should have abandoned the 'political' responsibilities of constitutional courts (such as review of electoral disputes, inter-branch conflicts of jurisdictions, etc.) in these countries for the sake of preserving their institutional survival and legitimacy. The author argues that these 'political' responsibilities are essential for enabling democratic contributions by constitutional courts, and two conceptual justifications are forwarded to support this proposition. In contrast to the suggestions to abandon the 'political' responsibilities, the article proposes to address the problem of constitutional courts' political involvement and the hazard of damaging their legitimacy by enhancing the discretion of constitutional courts through introduction of a sound 'political question doctrine'.

American and Canadian Civil Actions Alleging Human Rights Violations Abroad by Oil and Gas Companies

Under the United States Alien Tort Statute, which permits non-U.S. citizens to bring lawsuits in U.S. courts for human rights violations that are violations of the law of nations, plaintiffs have filed claims against multinational oil and gas corporations for the direct or complicit commission of such violations carried out by the government of the country in which the corporation operated. In addition to exercising jurisdiction over U.S. corporations, U.S. courts have exercised jurisdiction in cases involving non-U.S. defendants for alleged wrongful conduct against non-U.S. plaintiffs committed outside the U.S.The exercise of jurisdiction by U.S. courts over non-U.S. defendants for alleged wrongful conduct against non-U.S. plaintiffs committed outside of the U.S. raises serious questions as to the jurisdictional foundation on which the power of U.S. courts to adjudicate them rests. Defences that foreign defendants can raise against the exercise of jurisdiction by the U.S. courts are an objection to the extraterritorial assertion of jurisdiction, the act of state doctrine, the political question doctrine, forum non conveniens, and the principle of comity. These defences are bolstered by the support of the defendant’s home government and other governments.

2007 Year in Review: Constitutional Law

This chapter summarizes constitutional law developments involving environmental, energy and resources law for 2007. The U.S. Constitution provides both the authority for, and the limitations to, governmental efforts respecting environment, energy and natural resources. We have entered an interesting constitutional era, one in which a rising sea level will help to buoy a rising tide of climate litigation, the leading edge of which lies constitutional jurisprudence as applied to standing, the commerce clause, the political question doctrine, preemption, federalism, due process and takings. In 2007 most of it involves either state action (e.g., to regulate greenhouse gas emissions from new motor vehicles or require climate friendly energy production), or state causes of action (e.g., public or private nuisance). Among the battleground issues are the extent to which Congress may regulate use of private property under the Endangered Species Act as a last gasp effort to save rare plants and animals from extinction, pollutant discharges into water bodies that are not traditionally navigable, or activities that cause or contribute to climate change, and whether states may restrict destructive development, emissions of greenhouse gases, or the import and export of wastes that might denude or degrade natural resources, or provide causes of action for those harmed by releases of hazardous chemicals, and otherwise turn to federal courts to enforce federal natural resource and environmental laws.

If Not Us then Whom: Political Gerrymandering and Political Questions in Vierth V. Jubelirer

This paper analyzes the failure of the Vieth court to utilize the political question doctrine to end the quagmire of political gerrymandering litigation.

The Law: Termination of the ABM Treaty and the Political Question Doctrine: Judicial Succor for Presidential Power

President George W. Bush's unilateral termination of the 1972 ABM Treaty between the United States and Russia triggered a lawsuit, Kucinich v. Bush, in which members of the House of Representatives challenged the constitutionality of Bush's action on grounds that the president may not terminate a treaty without congressional approval. The Federal District Court refused to reach the merits of the case and dismissed the case as a nonjusticiable political question. The court's action reflects a disturbing tendency among lower court judges to elide substantive issues in foreign relations cases that challenge presidential usurpation of power. As a result, presidential aggrandizement of power remains unchecked.

Judicial Review and the War on Terrorism

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial enforcement. This view has been borne out in practice, as most recently demonstrated in the wars in Afghanistan and Iraq. The paper also reviews the role played by federal courts with regard to the domestic effects of war, particularly when the war involves American citizens as enemies or when operations occur within the territory of the United States itself. It illustrates the wartime role of judicial review by examining cases arising from the current war against the al Qaeda terrorist organization. In the context of surveillance, the federal courts have granted warrants under the Foreign Intelligence Surveillance Act (FISA) using more flexible standards than exist for a normal search warrant, to permit surveillance of terrorist suspects. With American citizens detained as enemy combatants, the courts have entertained habeas corpus petitions, but have followed a deferential standard of scrutiny for the executive branch's war making decisions. These cases show that while the courts have exercised judicial review over the consequences of the decision to go to war, they have adopted a more flexible, deferential standard of review than would apply to normal, peacetime governmental actions, in order to accommodate the imperatives of conducting war. Thus, judicial review may apply to domestic wartime measures, but in a manner that provides options to the political branches for the conduct of the war, rather than simply serving as a negative check on government action.

Leaving the Empty Vessel of 'Republicanism' Unfilled: An Argument for the Continued Non-Justiciability of Guarantee Clause Cases

Many commentators trace the beginning of the end of the political question doctrine to the Supreme Court's 1962 Baker v. Carr decision. In Baker, as Mark Tushnet has explained, the Court domesticated the doctrine by reducing it from an amorphous prudential doctrine to a set of six legal rules. If the political question doctrine continues to have any vitality, it is in the area of foreign affairs and in cases raising claims. I ignore the foreign affairs area and focus on the Guarantee Clause. Cases raising Guarantee Clause claims now stand on the cusp of justiciability.In Part I, I argue that there is good reason to believe that the Court will soon consider claims arising under the Guarantee Clause. First, as a textual matter, the argument for non-justiciability is weak. Second, the prudential rationale offered by the Court in Baker v. Carr for deciding Guarantee Clause claims - that the Guarantee Clause is not a repository of judicially manageable - has failed to hold up in the face of the Court's development of manageable standards in other areas of the law. Thus, all that stands in the way of justiciability is weakly-reasoned (though longstanding) precedent.In Part II of this Chapter, I argue that the Court should nonetheless continue to treat cases raising Guarantee Clause claims as non-justiciable. The most likely claims advanced under the Clause would challenge the initiative process (or particular initiatives) and provide additional arguments for Court intervention in election law, particularly voting rights, disputes. The success of such claims would further entrench courts in political regulation with little benefit and at a great potential cost. It also may have unintended consequences for those who see the clause as the next means of advancing a liberal activist agenda on the Court - it may just as well promote a conservative activist agenda. Thus, the history of the Guarantee Clause could well parallel the history of the Equal Protection Clause from its liberal use in post-Baker cases to more conservative uses in cases like Bush v. Gore. I conclude that both liberal and conservative Court Justices concerned about the over-involvement of the courts in political regulation would do well to keep the political question doctrine on life support, if only to insure that Guarantee Clause claims remain non-justiciable.