Constitutional
Law Class Notes
I lost all my notes halfway
through class and I can’t get them back.
Whatever stupid thing I did, don’t do it.
It
was supposed to be:
More on Cheney
And
The political question
doctrine
The
entire universe of constitutional questions include those questions subject to
the Marbury power and those that the
Court doesn’t control. The political
question doctrine includes all those constitutional interpretation questions
that the Court will refuse to answer because it doesn’t think it can. Marbury
and the political question doctrine are the opposite of each other.
The
Tenth Amendment used to fall under the political question doctrine. Now it’s back under Marbury.
Why
isn’t Padilla
a case where the political question doctrine should apply? Foreign affairs is an area where the political
question doctrine is frequently invoked.
But this doctrine was never mentioned in Padilla! How come?
The
Vietnam War was a key example where the courts said that the war was a
political question. People wanted the
courts to say that
Is
it a power issue?
In Padilla,
the court was deciding both a power question and a rights question. Neither one was considered a political
question that didn’t belong to the court.
Foley
thinks that questions will be decided if they involve the rights of individual
people. The answer to certain power questions
affects actual litigants and not just the relationship between different
branches of government. The court will
be more likely to think about a question as a political question when the only
parties in the dispute are branches of government themselves.