The blog in a nutshell

The blog in a nutshell

Friday, September 11, 2015

The Political Question Doctrine and the "Not an Agreement" argument

So yeah, now posting with titles!  Good job, me.

I didn't address the political question doctrine or the standing issues before because they are, quite frankly, obvious.  Here goes.

First, standing.

Federal courts don't hear cases "just because."  Someone needs to be concretely harmed, and a Court must be able to do something to resolve the injury, before a Court steps in.  They don't do advisory opinions, even if you really want to know a legal answer to a question.

Has Congress been harmed?  No.  Absent special circumstances, Congress doesn't have any legal "interest" in the laws they pass.  A district court, for the first time, recently found that there's a very narrow exception to that rule.  According to that judge, Congress has a legal interest in making sure that the Executive does not violate the Appropriations Clause, by using money that Congress never authorized to be spent in a certain way.  (If you're a government accountant, think Antideficiency Act stuff.  Otherwise, don't worry about it.)

Now, new exceptions come up from time to time.  Recently, the Supreme Court allowed Congress to defend a statute - the ultimately-ruled-unconstitutional Defense of Marriage Act - when the Executive declined to defend it (because it was unconstitutional).  But the exception provided by that Court doesn't really have a principled distinction, and even supporters of the decision think it is likely to be overturned.

But this doesn't concern the Appropriations Power, so that decision wouldn't even apply.

Now, Eugene Kontorovich argues that standing can be manufactured without Congress.  Specifically, he claims "a state Attorney General wishing to promptly challenge the President’s actions can easily do so by finding a company to enforce state sanctions laws against."  

This is wrong.  If a state AG did this against a proper defendant, the defendant would merely argue preemption.  And would win.  Indeed, without going into the details, the Supreme Court has held that even a state plan to divest interests in another country's economy is illegal to the extent it conflicts with the federal interest in a uniform sanctions policy.  If the state of Massachusetts cannot even prevent *itself* from doing business with Burma, the state of Utah certainly can't prevent its citizens from doing business with Iran.  And even if the defendant (say, due to unethical coordination, or just a bad defense lawyer) chose not to argue preemption, you can be sure that (if it happened in an important enough court - I am not sure whether anyone cares about a decision of the Pennsylvania Court of Common Pleas has to say about Corker-Cardin), the federal government would intervene and make the argument.  And remember - because the issue is what is called "field preemption" and due to the language the Supreme Court has used for "uniformity," this would be the outcome no matter what the Court thought of the meaning of "agreement" in Corker-Cardin.
So, this issue is not going to be resolved because nobody has an interest in it.  But even if someone did have an interest, it still wouldn't be resolved by a court.

Why not?  Political question doctrine.  At its heart, according to Wikipedia/Professor John Finn:

The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.

And if there was *ever* a case to apply political question doctrine, it is here.  Political question doctrine states that no decision will be made if *any one* of the following issues requires abstention:

A "textually demonstrable constitutional commitment of the issue to a coordinate political department; or"
A "lack of judicially discoverable and manageable standards for resolving it; or"
The "impossibility for a court's independent resolution without expressing a lack of respect for a coordinate branch of the government; or"
The "impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court; or"
An "unusual need for unquestioning adherence to a political decision already made; or"
The "potentiality of embarrassment from multifarious pronouncements by various departments on one question."

1) The Constitution, however, gives no role to the judiciary on issues of foreign affairs. 

2) There is, again, almost no judicially discoverable and manageable standards for resolving the dispute - and, as noted in my prior post - it appears more likely than not that Congress reserved to itself the ability to be a decisionmaker by voting to disapprove the agreement.  (Note, they could have also decided to reserve it for itself by requiring a vote to approve the agreement, but chose the framework that they chose.)  

3 and 4) The decision would be fraught with the highest-stakes of policy decisions (i.e., war with Iran) and infringement on respect for the executive.  

5) There would certainly be an "unusual need for unquestioning adherence to a political decision already made," because funds will have already be released, and multilateral sanctions already dropped, by the time of any decision.  

6) And, finally, embarrassment would be the least of the problem of a dispute between a court - even the Supreme Court - and the Executive on whether we have a deal with Iran.  After all, while the Supreme Court can generally block executive action (so long as the executive doesn't tell them to shove it), they have very little ability to compel the government to act.  So it will be left to states alone to use their very meager resources to impose sanctions.  The result would be political humiliation in the world's eye, to say the least.

So, yeah, no Court is going to touch that with a 20 foot pole.  Most Republicans in Congress are depending on this - the argument is a loser, and since Americans do not have the appetite for all-out war with Iran, its success would only empower that nation.  They don't want a court to belatedly reimpose sanctions.  What they want is to discredit Obama and the deal politically, so that they can win an election in 2016, sop to their base, and hopefully cast enough doubt regarding the deal's stability that a Republican President (it's technically possible) might have more leverage in Congress and international diplomacy to take a more hardline stance against Iran.

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