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Why is there a political question doctrine?

t Judicial reviewis undemocratic. Redish. Maybe this is right, but it does not distinguish political questions from any other questions that might be presented for judicial review. In a constitutional regime, a majority may not be permitted to do everything it wants to do.

t It is hard to resolve some questions in a principled way. Redish. Again, there are some quite difficult questions, such as the meaning of “due process” or “equal protection,” that SCt has little reluctance to take on if it thinks the job worth doing. Some questions are matters of discretion, but these are clearly identified in the text. “When USC’s framers intended that one of the political branches has discretion to act without principles, the document effectively says so, by vesting decision making power in those branches without simultaneously indicating how that power must be exercised. But if the document provides, for example, that it is Congress’ province to declare war, one may ask why it is appropriate for the courts, interpreting and enforcing the document, to overrule USC’s allocation of power by concluding that the conduct of military affairs, even to the point of waging war, must lie in the executive’s uncontrolled discretion.”

t Judges are not politicians, and cannot understand the broader political situation in which their decisions operate, so they should defer to those who can assess the practical consequences of their decisions. Redish. This, once more, proves too much. “If the constitutional limitations on majoritarian power are to mean anything, at some point the judiciary must be able to question the political branches’ assertion of factual necessity.”

t Court orders might be ignored by the political branches. Redish. But this is not a real danger in many of the political question cases, and even when it is, it is not clear that the judiciary enhances its authority by slinking away before the confrontation has a chance to occur.


Date: 2015-01-02; view: 169


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