Judge Kavanaugh (2010): Applying the political question doctrine in statutory interpretation cases would “systematically favor the Executive Branch over the Legislative Branch” and “inevitably tilt the constitutional structure decidedly in favor of executive supremacy.”
Equal justice apparently isn't equal anymore.
Something to think about. Judge Kavanaugh's concurrence in El-Shifa Pharmaceutical Industries Co. v. United States:
Importantly, the Supreme Court has invoked the political question doctrine only in cases alleging violations of the Constitution. This is a statutory case. The Supreme Court has never applied the political question doctrine in a case involving alleged statutory violations. Never.
As the Supreme Court has explained, the interpretation of legislation is a "recurring and accepted task for the federal courts." Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). Under Article III of the Constitution, "one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones." Id.; see also 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3534.2, at 752 (3d ed. 2008) ("[I]nterpretation of statutes affecting foreign affairs is not likely to be barred by [the] political-question doctrine."); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 1.3, at 15 (5th ed. 2007) ("Under current law, the political question doctrine consigns certain allegations of constitutional violations to the other branches of government for adjudication and decision, even if all other jurisdictional and justiciability requirements are met.") (emphasis added).
There is good reason the political question doctrine does not apply in cases alleging statutory violations. If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. As a result, the court would be ruling (at least implicitly) that the statute intrudes impermissibly on the Executive's prerogatives under Article II of the Constitution. In other words, the court would be establishing that the asserted Executive power is exclusive and preclusive, meaning that Congress cannot regulate or limit that power by creating a cause of action or otherwise.
Applying the political question doctrine in statutory cases thus would not reflect benign deference to the political branches. Rather, that approach would systematically favor the Executive Branch over the Legislative Branch — without the courts' acknowledging as much or grappling with the critical separation of powers and Article II issues. The fact that use of the political question doctrine in statutory cases loads the dice against the Legislative Branch presumably explains why there is no Supreme Court precedent applying the doctrine in statutory cases — and why the Executive Branch (sometimes wary, for a variety of reasons, of advancing a straight Article II argument) may want the courts to invoke the doctrine in statutory cases of this sort. Cf. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb — Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L.REV. 689, 723-24 (2008) ("One need only consider the cases that could arise in the contemporary setting to see that leaving the …
Equal justice apparently isn't equal anymore.
Something to think about. Judge Kavanaugh's concurrence in El-Shifa Pharmaceutical Industries Co. v. United States:
Importantly, the Supreme Court has invoked the political question doctrine only in cases alleging violations of the Constitution. This is a statutory case. The Supreme Court has never applied the political question doctrine in a case involving alleged statutory violations. Never.
As the Supreme Court has explained, the interpretation of legislation is a "recurring and accepted task for the federal courts." Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). Under Article III of the Constitution, "one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones." Id.; see also 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3534.2, at 752 (3d ed. 2008) ("[I]nterpretation of statutes affecting foreign affairs is not likely to be barred by [the] political-question doctrine."); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 1.3, at 15 (5th ed. 2007) ("Under current law, the political question doctrine consigns certain allegations of constitutional violations to the other branches of government for adjudication and decision, even if all other jurisdictional and justiciability requirements are met.") (emphasis added).
There is good reason the political question doctrine does not apply in cases alleging statutory violations. If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. As a result, the court would be ruling (at least implicitly) that the statute intrudes impermissibly on the Executive's prerogatives under Article II of the Constitution. In other words, the court would be establishing that the asserted Executive power is exclusive and preclusive, meaning that Congress cannot regulate or limit that power by creating a cause of action or otherwise.
Applying the political question doctrine in statutory cases thus would not reflect benign deference to the political branches. Rather, that approach would systematically favor the Executive Branch over the Legislative Branch — without the courts' acknowledging as much or grappling with the critical separation of powers and Article II issues. The fact that use of the political question doctrine in statutory cases loads the dice against the Legislative Branch presumably explains why there is no Supreme Court precedent applying the doctrine in statutory cases — and why the Executive Branch (sometimes wary, for a variety of reasons, of advancing a straight Article II argument) may want the courts to invoke the doctrine in statutory cases of this sort. Cf. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb — Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L.REV. 689, 723-24 (2008) ("One need only consider the cases that could arise in the contemporary setting to see that leaving the …
Judge Kavanaugh (2010): Applying the political question doctrine in statutory interpretation cases would “systematically favor the Executive Branch over the Legislative Branch” and “inevitably tilt the constitutional structure decidedly in favor of executive supremacy.”
Equal justice apparently isn't equal anymore.
Something to think about. Judge Kavanaugh's concurrence in El-Shifa Pharmaceutical Industries Co. v. United States:
Importantly, the Supreme Court has invoked the political question doctrine only in cases alleging violations of the Constitution. This is a statutory case. The Supreme Court has never applied the political question doctrine in a case involving alleged statutory violations. Never.
As the Supreme Court has explained, the interpretation of legislation is a "recurring and accepted task for the federal courts." Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). Under Article III of the Constitution, "one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones." Id.; see also 13C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3534.2, at 752 (3d ed. 2008) ("[I]nterpretation of statutes affecting foreign affairs is not likely to be barred by [the] political-question doctrine."); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 1.3, at 15 (5th ed. 2007) ("Under current law, the political question doctrine consigns certain allegations of constitutional violations to the other branches of government for adjudication and decision, even if all other jurisdictional and justiciability requirements are met.") (emphasis added).
There is good reason the political question doctrine does not apply in cases alleging statutory violations. If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. As a result, the court would be ruling (at least implicitly) that the statute intrudes impermissibly on the Executive's prerogatives under Article II of the Constitution. In other words, the court would be establishing that the asserted Executive power is exclusive and preclusive, meaning that Congress cannot regulate or limit that power by creating a cause of action or otherwise.
Applying the political question doctrine in statutory cases thus would not reflect benign deference to the political branches. Rather, that approach would systematically favor the Executive Branch over the Legislative Branch — without the courts' acknowledging as much or grappling with the critical separation of powers and Article II issues. The fact that use of the political question doctrine in statutory cases loads the dice against the Legislative Branch presumably explains why there is no Supreme Court precedent applying the doctrine in statutory cases — and why the Executive Branch (sometimes wary, for a variety of reasons, of advancing a straight Article II argument) may want the courts to invoke the doctrine in statutory cases of this sort. Cf. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb — Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L.REV. 689, 723-24 (2008) ("One need only consider the cases that could arise in the contemporary setting to see that leaving the …
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