[SOUND] I'm talking about the constitutional limits that exist in the federal judicial power, and I said that one of these was the prohibition advisory opinions, another of these, which is most important is the requirement for standing. And they said in order for a plaintiff to have standing to sue in federal court, the plaintiff must show injury, causation, and redressability. I've already talked about injury. Let me talk about causation. What this means is that the plaintiff must show that the defendant's conduct is the cause of the harm. Otherwise, no standing. A very important illustration of the significance of this limit was a Supreme Court case over 30 years ago, Allen v Wright. Allen v Wright was a lawsuit that was brought by African Americans, challenging the fact that the IRS, in violation of federal law, was giving tax credits to private schools that discriminated on the basis of race. There's a federal law that says that if a school discriminates based on race, it cannot get certain tax breaks from the federal government. And yet the IRS was not enforcing that federal statute. It was allowing these private schools to keep their tax exempt status. And African American families brought a challenge. They said the effect of the tax breaks in the federal government is to give an indirect subsidy to these private schools. As a result of the subsidy the private schools charge less than they would if they weren't getting the tax break. Because they're charging less than they otherwise would the plaintiff said that that makes it easier for parents to send their children to private school rather than public school. The fact that the white kids are going to the private schools with the tax breaks rather than the public schools increases the segregation of the pubic schools and that violates the Constitution. But the Supreme Court ordered this claim dismissed and the court said the plaintiffs can't show that the tax breaks are the cause of the segregated schools. Obviously there's many things that lead to segregated schools. And the Supreme Court said because the tax breaks have not been demonstrated to be the cause of the harm, the plaintiffs lack standing. So notice again, if people are claiming that the federal government has acted unconstitutionally, plaintiffs have claimed federal government was acting unconstitutionally in one of those crucial areas, school segregation, and yet the supreme court ruled that the plaintiffs lacked standing to sue. Once more, as with other cases we discussed in standing, the Supreme Court was split five to four. DIvided ideologically with the five conservatives wanting to restrict standing, and the four more liberal justices wanted to allow the suit to go forward. The third and final constitutional requirement for standing is called redressability. In order for the plaintiff to sue, the plaintiff has to allege in the complaint, and ultimately prove that a favorable federal court decision is likely to remedy the harm suffered. From a common sense porspective because back to what I was talking about in terms of federal courts can't issue advisory penance. If a federal court ruling for the plaintiff would have absolutely no effect, then it's just an impermissible advisory opinion. Again though, this requirement often means that individuals who suffered constitutional violations are left without any recourse. Given an example of a supreme court case from 1976 Simon v Eastern Kentucky Welfare Rights Organization. It also involved the Internal Revenue Service. There's a federal statute that says in order for a hospital to have tax exempt status, it must provide free care to indigenes. The internal revenue service adopted a rule that said hospitals could keep their tax exempt status without providing free care to indigents. Some poor people went to a tax exempt hospital, they requested free care, and they were turned away. They sued the IRS to have the revenue ruling declared inconsistent with and invalid under the federal statute. But the Supreme Court ruled that the plaintiff lacked standing. The Supreme Court said the plaintiffs could not prove that even if the IRS revenue rule is struck down, that more free care would be available for poor people. The Supreme Court said the plaintiffs can't show that it's the revenue rule rather than economic of the situation that caused a lack of free care. The courts said hospitals might choose to give up their tax exempt status rather than provide more free care to immigrants because the plaintiffs could not show that striking down the revenue rule would remedy the injury suffered, the Supreme Court said no standing. Give another example of this, a case from around the same time period, this one's from 1975. Case called Warth v Seldin. What's involved here is a suburb of Rochester, New York, Penfield, had a zoning ordinance that required that land be used for single family homes on relatively large lots. In other words there couldn't be multi family dwellings. And plaintiffs brought a challenge saying that this meant that low income housing couldn't be built there. Similar lawsuits were brought to zoning ordinances like this all over the country. But, the Supreme Court ruled that the plaintiffs, developers, low income residents in Rochester, who want to move to Penfield, Penfield residents who wanted there to be low income housing there lacked standing. The Supreme Court said none of the plaintiffs could demonstrate that even if the revenue ruling was struck down, that housing would be built that low income individuals could afford. The Supreme Court once more said because the plaintiffs could not prove that the favorable federal court decision would remedy the harm, no standing. So, in order for a plaintiff to have standing, the plaintiff must prove injury, causation, and redressability. The Supreme Court says all of these are derived from Article Three's demand that there be a case in controversy. In addition to the prohibition of advisory opinions and standing, I want to talk about one other constitutional limit that the Supreme Court has imposed on itself, and this is called the Political Question Doctrine. The Political Question Doctrine says that there's certain claims of constitutional violations, that are left to the elected branches, President and congress to resolve. Notice, there's a claim that the constitution has been violated. But the federal courts will not adjudicate that claim. The federal courts have said, it's political, it's left to the other branches of government. Now obviously, much of what the Supreme Court does has political consequences. That's not enough to make it a political question. The Supreme Court has said certain types of claims are inherently better for the other branch to decide and not the judiciary. Let me give you some examples of this. The Supreme Court has said that some challenges to the president's conduct of foreign policy are political questions. Even though there's a claim that the president has violated the constitution, the federal courts will not adjudicate it. An example from the 1970s, a case called Goldwater versus Carter. President Jimmy Carter rescinded the United States' treaty with Taiwan as part of recognising the People's Republic of China. Senator Barry Goldwater brought a lawsuit. He argued that the President lacked the authority to unilaterally rescind a treaty. He said when it comes to a statute, Congress ratifies and passes it and Congress has to repeal it. He said the same thing should be required in order to repeal a treaty. But the Supreme Court said, this was a challenge to the President's conduct of foreign policy, so the Federal Court will not adjudicate Senator Barry Goldwater's suit. The Court said, it's a political question. Or another quite important example. During the late 1960s and early 1970s there were over 2,000 lawsuits arguing the Vietnam War was unconstitutional because the President was waging war without a Congressional Declaration of War. Invariably these lawsuits were dismissed as political questions because they were challenges to the President's conduct of foreign policy. In fact, many times over the last decades, there've been challenged the president's use of war powers. When President Clinton bombed Cosova. When President Obama bombed Libya. There were arguments that the president was acting unconstitutionally. But what the courts have done in all these is say, that's a political question. It's not for the courts to adjudicate. Another very important example, the supreme court just in the last decade has said that challenges to partisan gerrymandering are non-dismissable political questions. Partisan gerrymandering is where the political party that controls the Legislature, draws election districts to maximize their seats for that party. It's where the Republican controlled State Legislature draws election districts to maximize their seats for Republicans. It's where the Democratic controlled City Council draws City Council districts to maximize city seats for Democrats. This is nothing new. But computer programs have made it ever more possible engage in precise partisan gerrymandering. Couple of cases came to the Supreme Court arguing that such partisan gerrymandering was unconstitutional, but the President said it was a political question that the courts could not adjudicate. Give you an example. In 2004, the court decided a case called Vieth versus Jubelirer. This involved the Republican controlled Pennsylvania legislature drawing election districts to maximize state seats for Republicans. The Supreme Court 5-4 said, this is a political question. It's left to the political parties to adjudicate. In 2006, there was a case called Lulac versus Perry. This came from Texas. It involved the Texas legislature, controlled by Republicans drawing election districts to strongly favor Republicans. Once more the Court said, there's a political question. It wasn't going to get involved. So there were claims of a constitutional violation but the federal courts would not adjudicate them. One more example of where the Court has found a political question. The Court has said that challenges to how the impeachment removal processes are conducted are political questions the courts can't resolve. This was a case in 1993, it was ironically titled, Nixon versus United States. The Nixon in this case was Walter Nixon. He was a federal district court judge from Mississippi who'd been impeached by the House of Representatives. It probably reflects my age, but I find it a delicious irony, that the only Supreme Court case in history to ever deal with impeachment, still had the title Nixon versus the United States. After the House of Representatives impeached Walter Nixon, the matter went to the Senate for a trial. The Senate decided to form a committee to the evidence against Walter Nixon, and then make recommendations to the whole body. Nixon objected to this. He said the whole Senate should have to sit and try him. But the Supreme Court ruled against Nixon, saying challenges to the impeachment and removal process are political questions that the courts can't resolve. Nixon claimed that the Constitution was violated. But the federal courts would not hear his case. It's worth asking whether there should be a political question doctrine. Should the federal judiciary be able to dismiss such claims of constitutional violations without adjudicating them? Yet through American history the Supreme Court has said there's certain matters that are political questions the courts won't decide. So I pose the question for you, what are the limits on the Federal Judicial power? One set of limits are constitutional. The derive from the words cases in controversy in article three and I've given you some examples of that. The prohibition advisory opinions, the requirement for standing to sue, the political question doctrine. [SOUND]
