I think what you're really saying is that the Judiciary, like any body, should self-restrain where it makes sense. Trying to insert the judiciary into diplomacy and war makes little sense; I think the US already struggles with diplomacy because all of our ambassadors require Senate approval, and all of our treaties too.
Just like Congress: just because they can do something does not mean they should. Should Congress really tell POTUS exactly how to clean up the air, down to the individual regulatory actions by plant? No, of course not. Congress should give guidelines and let the federal government decide how to enforce them, and if they don't agree amend legislation.
Judgment is important, we should think on how we do things
>When unelected judges become politicians, they are decidedly inferior to the elected kind, because the public has no real way to remove them from office or to punish them for making choices out of step with the public.
Every so often, though, this turns out to be a really good thing.
>So why couldn’t the Court enforce the Constitution and stop the bombing of Cambodia? Simple— the courts can’t run war policy. What would have happened had the Court affirmed or let stand Douglas’ order? Well, the first thing that would have happened is Richard Nixon would have ignored it. Why wouldn’t he? What is Douglas going to do? Hold Nixon in contempt? Seek to imprison him?
Douglas may do what Douglas pleases -- if he were to judge it wise to withhold any action on the subject until after the end of active conflict or until Nixon had left office, that would be his prerogative. Like police officers, executives do what they see fit in the moment, and the consequences are generally reckoned afterwards. Yet if he were to judge the error so severe as to necessitate immediate intervention such as holding the President in contempt, that would also be his prerogative. it's sort of the converse of Jackson's ultimatum: "Send the marshals, and let him resist them." Obviously a rather bold thing to do, but if a President were, say, ordering brutal massacre of civilians for unclear gain, well, a bit of that we must apparently tolerate according to the court, but there must be some magnitude of slaughter at which you would agree it behooves anyone with a chance to take action.
>So courts shouldn’t issue rulings they really don’t have the power to enforce.
I think this is completely wrong. Courts must never shrink from issuing orders that they deem just on account of some nebulous doubt as to the obedience of some party or another to the decision. Your notion here is anxious, cowardly, despondent, and creates an ever-diminishing sphere of power for the court, as no lost power could ever be clawed back by timid judges following your rule. Thus "ratcheting" takes place.
I (mostly) agree with the article and I (almost fully) agree with the political question doctrine itself, which I think is appropriately grounded in the Constitution and is a good tweak to the nose of judicial supremacists who think all law is judge-law. This is a good article and a good argument and I'm glad you're making the case for the political question doctrine to your readers.
However, it's an *odd* article to post right at this specific moment, isn't it? The reason the political question doctrine is In The News right at this moment is because it keeps popping up in lawsuits about presidential qualifications. Your argument here (if I follow you) is that the political question doctrine is good policy because it protects the People (and the courts) from judges having to decide things that they lack either the power or the competence to decide. But "Does Person X have textually-prescribed legal qualification Y?" is a question courts eminently have both the power and competence to answer. As the Minnesota Supreme Court asked at oral arguments, "Are you saying this falls under the political question doctrine simply because the case requires us to engage in... fact-finding?"
So your article is a sound defense of the political question doctrine, but also seems divorced from the current national conversation raging about the political question doctrine!
That's not a criticism. It just struck me as odd, and I wondered whether I might be able to coax you into saying a little more by leaving this comment.
I think what you're really saying is that the Judiciary, like any body, should self-restrain where it makes sense. Trying to insert the judiciary into diplomacy and war makes little sense; I think the US already struggles with diplomacy because all of our ambassadors require Senate approval, and all of our treaties too.
Just like Congress: just because they can do something does not mean they should. Should Congress really tell POTUS exactly how to clean up the air, down to the individual regulatory actions by plant? No, of course not. Congress should give guidelines and let the federal government decide how to enforce them, and if they don't agree amend legislation.
Judgment is important, we should think on how we do things
>When unelected judges become politicians, they are decidedly inferior to the elected kind, because the public has no real way to remove them from office or to punish them for making choices out of step with the public.
Every so often, though, this turns out to be a really good thing.
>So why couldn’t the Court enforce the Constitution and stop the bombing of Cambodia? Simple— the courts can’t run war policy. What would have happened had the Court affirmed or let stand Douglas’ order? Well, the first thing that would have happened is Richard Nixon would have ignored it. Why wouldn’t he? What is Douglas going to do? Hold Nixon in contempt? Seek to imprison him?
Douglas may do what Douglas pleases -- if he were to judge it wise to withhold any action on the subject until after the end of active conflict or until Nixon had left office, that would be his prerogative. Like police officers, executives do what they see fit in the moment, and the consequences are generally reckoned afterwards. Yet if he were to judge the error so severe as to necessitate immediate intervention such as holding the President in contempt, that would also be his prerogative. it's sort of the converse of Jackson's ultimatum: "Send the marshals, and let him resist them." Obviously a rather bold thing to do, but if a President were, say, ordering brutal massacre of civilians for unclear gain, well, a bit of that we must apparently tolerate according to the court, but there must be some magnitude of slaughter at which you would agree it behooves anyone with a chance to take action.
>So courts shouldn’t issue rulings they really don’t have the power to enforce.
I think this is completely wrong. Courts must never shrink from issuing orders that they deem just on account of some nebulous doubt as to the obedience of some party or another to the decision. Your notion here is anxious, cowardly, despondent, and creates an ever-diminishing sphere of power for the court, as no lost power could ever be clawed back by timid judges following your rule. Thus "ratcheting" takes place.
I (mostly) agree with the article and I (almost fully) agree with the political question doctrine itself, which I think is appropriately grounded in the Constitution and is a good tweak to the nose of judicial supremacists who think all law is judge-law. This is a good article and a good argument and I'm glad you're making the case for the political question doctrine to your readers.
However, it's an *odd* article to post right at this specific moment, isn't it? The reason the political question doctrine is In The News right at this moment is because it keeps popping up in lawsuits about presidential qualifications. Your argument here (if I follow you) is that the political question doctrine is good policy because it protects the People (and the courts) from judges having to decide things that they lack either the power or the competence to decide. But "Does Person X have textually-prescribed legal qualification Y?" is a question courts eminently have both the power and competence to answer. As the Minnesota Supreme Court asked at oral arguments, "Are you saying this falls under the political question doctrine simply because the case requires us to engage in... fact-finding?"
So your article is a sound defense of the political question doctrine, but also seems divorced from the current national conversation raging about the political question doctrine!
That's not a criticism. It just struck me as odd, and I wondered whether I might be able to coax you into saying a little more by leaving this comment.