Top Law Schools

So, I am really struggling with this freaking topic. It seems like there is not clear standard or test to apply and is simply a matter of answering if
1. Claim is brought under Gauranty Clause
2. Matter of foreign policy
3. Deals with impeachment
4. Is an amendment

If the answer is yes to any of those then it is a political question, otherwise no, unless the court doesn't want to deal with the issue. The elements laid out in Baker v. Carr seem like absolute shit that can be applied any which way. What am I missing?

BDP wrote:So, I am really struggling with this freaking topic. It seems like there is not clear standard or test to apply and is simply a matter of answering if
1. Claim is brought under Gauranty Clause
2. Matter of foreign policy
3. Deals with impeachment
4. Is an amendment

If the answer is yes to any of those then it is a political question, otherwise no, unless the court doesn't want to deal with the issue. The elements laid out in Baker v. Carr seem like absolute shit that can be applied any which way. What am I missing?

There was a recent case with it. http://www.supremecourt.gov/opinions/11pdf/10-699.pdf

BDP wrote:The elements laid out in Baker v. Carr seem like absolute shit that can be applied any which way. What am I missing?

Welcome to Con Law.

ben4847 wrote:
There was a recent case with it. http://www.supremecourt.gov/opinions/11pdf/10-699.pdf

TITCR

Zivotofsky took all the old tests and boiled them down to a two-prong, political question test:

1. When dealing with the exercise of a constitutionally conferred power by the appropriate political department (e.g. if Congress sends an amendment to the states, the courts won't delve into whether they should have or not; if Congress found it appropriate, then it was); or

2. When there is a lack of judicially discoverable or manageable standards for resolving the question (this I have some trouble with, but my understanding is that, if the court can't articulate a set rule to follow, you may be dealing with a political question.)

ETA: Of course, if your professor is only teaching the Baker tests, then you're just fucked. Good luck.

fundamentallybroken wrote:

ben4847 wrote:
There was a recent case with it. http://www.supremecourt.gov/opinions/11pdf/10-699.pdf

TITCR

Zivotofsky took all the old tests and boiled them down to a two-prong, political question test:

1. When dealing with the exercise of a constitutionally conferred power by the appropriate political department (e.g. if Congress sends an amendment to the states, the courts won't delve into whether they should have or not; if Congress found it appropriate, then it was); or

2. When there is a lack of judicially discoverable or manageable standards for resolving the question (this I have some trouble with, but my understanding is that, if the court can't articulate a set rule to follow, you may be dealing with a political question.)

This is wrong. Zivotosfsky did not boil the old tests down to a two-prong test. These two prongs are quotes from Baker. There are just the two relevant elements for determining a political doctrine. Sotomayor, in her concurrence, broadens the 6 elements in Baker into three general categories, but the categories are to broad to make the tests any easier.

In sum, the Political Question Doctrine, is confusing and shitty.

My understanding is also that those two prongs come from Baker v. Carr, with the other four referring to 'prudential' concerns.. which basically means that the court can call anything a political question if they really want to. FWIW...

I just finished my ConLaw outline.. I'm so going to fail this class!

Don't worry about applying a test to determine if something is a nonjusticiable political question, just know the things that are nonjusticiable political questions, e.g., war powers stuff.

Political Question doctrine: If SCOTUS doesn't feel like answering a question, it doesn't have to, but sometimes it will grant cert and write an opinion reminding you of that fact so that you stop bugging it in the future.

fundamentallybroken wrote:

ben4847 wrote:
There was a recent case with it. http://www.supremecourt.gov/opinions/11pdf/10-699.pdf

TITCR

Zivotofsky took all the old tests and boiled them down to a two-prong, political question test:

בא חבקוק ו העמידן על אחת