Political Questions and Advisory Opinions
The SC will not hear cases that the Constitution leaves to the discretionary powers of the other branches (B
Justiciability doctrines are a set of judicially-created rules limiting the types of cases that federal courts
Requiring justiciability ensures (1) the separation of powers by preventing the Supreme Court from involving
of other branches, and (2) concreteness, which ensures that there are actual parties with actual dis
Determine if:
1. Nonjudicial official is asking the cour
Rule Against Advisory Opinions legal opinion; OR
2. If a party is seeking an injunction for a
not yet become effective
Rule Statement:
Political Questions Doctrine At the core of Article III and SOP, federal ct. may not a
question whose resolution is more proper or better res
democratic process. There is not test for the PQD, on
which includes (1) did the constitution assign power e
another branch of federal government, (2) judicial dec
cause great embarrassment and confusion over who
US and (3) if there is no legal or judicially manageable
be applied to the case (a test).
Does the Constitutio
Jurisdictional
another branch to d
Factors
issue?
Does the Judiciary
resources or appara
Merits Based adequate discovery
management standa
P adeqaute relief?
Discuss factors for deciding
The need to speak w
what makes it a PQ and
voice as a Federal G
therefore non-justiciable
Impossibility of dec
question withouot m
initial policy determ
Prudential/ Impossibility of reso
Differential without disrespectin
, Justicability Doctrines
The SC will not hear cases that the Constitution leaves to the discretionary powers of the other branches (Baker v. Ca
set of judicially-created rules limiting the types of cases that federal courts may hear. Requiring justiciability ensures (
preventing the Supreme Court from involving itself in affairs of other branches, and (2) concreteness, which ensures
actual disputes.
If the fact pattern concerns the timing of when the case is brought:
Ripeness s
Determine: being litiga
1. Fitness of issue for judicial decision for review.
Is the case ripe? controversy
2. Hardship on party seeking review if
adjudication is delayed of future co
Pursuant
may on
Determine: controversie
1. Is the case/controversy continuing An issue
Is the case moot?
throughout the proceedings? review if an
2. Are the litigants rights still being affected? continue t
and no lon
litiga
Do any of these exceptions apply:
1. Capable of repetition yet evading review
2. Voluntary cessation of illegal activity
3. Class Action Lawsuit
4. Collateral Consequences
If the fact pattern concerns who is bringing the case:
Concrete and particu
P; not a generalized
public. Need to suffer
public at large
Injury in Fact Not just an ideologi
Injury must be immin
, Congress's Commerce Clause Power
Under Article 1, Section 8, Congress shall have the power to regulate commerce with foreign nations, tribes, and
several states. It also has the power to pass legislation that is necessary and proper (McCulloch). This power o
to interstate commerce, rather than activitites wholly within a given state.
If state is NOT being regulated, use this analysis:
Interstate Commerce: Must fall within one of the following categories:
Channels of IC Instrumentalities of IC Substantial Affects on IC
Things that move through Economic No
Highways,
interstate commerce Activity
waterways, air traffic,
hotels, etc. (cars, trucks, etc)
Congress can If th
regulate purely local none
Congress can Congress can activities that have a mu
regulate this even if regulate this even if substantial effect on jur
the activity seems the threat may only IC (NLRB) elem
intrastate (Darby, come from intrastate
Gibbons) activities (Darby,
Heart of Atlanta) If indirect and Define the activity
remote to IC, BROADLY: No ag
Congress may NOT Gonzales (weed (Morris
regulate it; unlikely to case); Wickard
survive judicial (agricultural case)
review (NLRB)
NO
subs
Aggregate effects: case
Congress can Cong
aggregate the impact of find
small local activities in r
order to show that it d
substantially affects IC (altho
(Wickard; Gonzales) b
(
If State IS being regulated, use this analysis:
Does the 10th Amendment Apply?
Note: in general, the 10th amendment only applies for commandeering
Anti-Commandeering 10th Amendme
Under the anti-commandeering doctrine, Congress may not Congress may carry out its
issue directives to state legislatures to regulate on behalf of powers, but under the 10th
the federal government . Anti-commandeering is rooted in the powers not enumerated
The SC will not hear cases that the Constitution leaves to the discretionary powers of the other branches (B
Justiciability doctrines are a set of judicially-created rules limiting the types of cases that federal courts
Requiring justiciability ensures (1) the separation of powers by preventing the Supreme Court from involving
of other branches, and (2) concreteness, which ensures that there are actual parties with actual dis
Determine if:
1. Nonjudicial official is asking the cour
Rule Against Advisory Opinions legal opinion; OR
2. If a party is seeking an injunction for a
not yet become effective
Rule Statement:
Political Questions Doctrine At the core of Article III and SOP, federal ct. may not a
question whose resolution is more proper or better res
democratic process. There is not test for the PQD, on
which includes (1) did the constitution assign power e
another branch of federal government, (2) judicial dec
cause great embarrassment and confusion over who
US and (3) if there is no legal or judicially manageable
be applied to the case (a test).
Does the Constitutio
Jurisdictional
another branch to d
Factors
issue?
Does the Judiciary
resources or appara
Merits Based adequate discovery
management standa
P adeqaute relief?
Discuss factors for deciding
The need to speak w
what makes it a PQ and
voice as a Federal G
therefore non-justiciable
Impossibility of dec
question withouot m
initial policy determ
Prudential/ Impossibility of reso
Differential without disrespectin
, Justicability Doctrines
The SC will not hear cases that the Constitution leaves to the discretionary powers of the other branches (Baker v. Ca
set of judicially-created rules limiting the types of cases that federal courts may hear. Requiring justiciability ensures (
preventing the Supreme Court from involving itself in affairs of other branches, and (2) concreteness, which ensures
actual disputes.
If the fact pattern concerns the timing of when the case is brought:
Ripeness s
Determine: being litiga
1. Fitness of issue for judicial decision for review.
Is the case ripe? controversy
2. Hardship on party seeking review if
adjudication is delayed of future co
Pursuant
may on
Determine: controversie
1. Is the case/controversy continuing An issue
Is the case moot?
throughout the proceedings? review if an
2. Are the litigants rights still being affected? continue t
and no lon
litiga
Do any of these exceptions apply:
1. Capable of repetition yet evading review
2. Voluntary cessation of illegal activity
3. Class Action Lawsuit
4. Collateral Consequences
If the fact pattern concerns who is bringing the case:
Concrete and particu
P; not a generalized
public. Need to suffer
public at large
Injury in Fact Not just an ideologi
Injury must be immin
, Congress's Commerce Clause Power
Under Article 1, Section 8, Congress shall have the power to regulate commerce with foreign nations, tribes, and
several states. It also has the power to pass legislation that is necessary and proper (McCulloch). This power o
to interstate commerce, rather than activitites wholly within a given state.
If state is NOT being regulated, use this analysis:
Interstate Commerce: Must fall within one of the following categories:
Channels of IC Instrumentalities of IC Substantial Affects on IC
Things that move through Economic No
Highways,
interstate commerce Activity
waterways, air traffic,
hotels, etc. (cars, trucks, etc)
Congress can If th
regulate purely local none
Congress can Congress can activities that have a mu
regulate this even if regulate this even if substantial effect on jur
the activity seems the threat may only IC (NLRB) elem
intrastate (Darby, come from intrastate
Gibbons) activities (Darby,
Heart of Atlanta) If indirect and Define the activity
remote to IC, BROADLY: No ag
Congress may NOT Gonzales (weed (Morris
regulate it; unlikely to case); Wickard
survive judicial (agricultural case)
review (NLRB)
NO
subs
Aggregate effects: case
Congress can Cong
aggregate the impact of find
small local activities in r
order to show that it d
substantially affects IC (altho
(Wickard; Gonzales) b
(
If State IS being regulated, use this analysis:
Does the 10th Amendment Apply?
Note: in general, the 10th amendment only applies for commandeering
Anti-Commandeering 10th Amendme
Under the anti-commandeering doctrine, Congress may not Congress may carry out its
issue directives to state legislatures to regulate on behalf of powers, but under the 10th
the federal government . Anti-commandeering is rooted in the powers not enumerated
