Political Question Doctrine – The Law Offices of Andy I. Chen

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Hi everybody, it’s Andy and welcome again
to my office in Modesto, California. I’m an attorney licensed to practice law
California as well as New York and in this video I’m gonna try to go over
something called the Political Question doctrine. Now this doctrine is not
specific to California, specific to New York. It’s sort of, I guess, applies
generally across the United States. It stems from a Supreme Court case
actually back from the 60s, which I’ll refer to kind of later on in the video,
but this is not state-specific, so even if you’re outside California, you’re
outside New York, this video will apply to you also. The precise details about
how your state, for example, does it, might be slightly different, but you know, the
idea of political question well, you know, it exists in every state. So, um I guess,
the genesis of this video basically is that a while ago I put out a blog post,
which I’ll try to find and kind of pop up in a card above my head here, but the, the basic idea of that blog post, though, was to go over something in California called a
claim form. So, I guess, not sure if you know, most people know this, but it’s
something where in California under the law, you cannot sue the government like
you would sue like a normal person or a normal company. You have to, a lot of
times, go through a claim form process, give the governmental entity a, uh, like
an opportunity, I guess, to kind of approve your claim, reject your claim, and then
only after it’s rejected, can you then file a lawsuit, etc. So it’s something
where it’s not hard, I guess, to comply with the claim form process in
California, but it is basically a hoop that, unfortunately I think, a lot of
people don’t know about so they don’t bother jumping through it, I guess if
that’s the right analogy, and because they don’t jump through that hoop
properly, later on if they try to file suit, a lot of times they realize that
they can’t because they did not know about this easy, simple thing that they
had to do. So that’s the the blog post that I kind of linked up above kind of
in a nutshell. A lot of people actually have found that blog post and they’re
reading it far broader than I ever intended and they’re asking about how to
sue XYZ agency of the government, XYZ agency of the state, the county, you know,
the police department, whatever. So the questions are broad enough, I
guess, and I figured like it’s something where political question actually
applies to enough of them, that I think it’d be more efficient for me to kind of
address the doctrine kind of en masse like this via, via a video. So, um I guess,
for those of you who’ve never been to law school or I guess for those of you
who went to law school it was ages years ago, political question generally
is taught – at least in the United States – during the first year of constitutional
law. So it’s something where you learn about it in terms of, er, sorry, at the
same time rather, at the same time with mootness, ripeness, standing. If you went
to law school, hopefully those terms sound familiar to you, but political
question generally is taught in that sort of segment, I guess, of
constitutional law. So in terms of what political question doctrine is, there
really is no kind of good, like real life sort of analogy that I could think of, so
I’m gonna try to illustrate it with an example. So in general when you elect an
official – let’s say you, we’re talking about a mayor, let’s say the mayor of a
city – you’re generally not gonna micromanage that person, like you’re not
going to specify his or her role so narrowly that they basically are
handcuffed, they can’t really do stuff on a day-to-day basis, they always have to
get permission from the, from the City Council or something. So you’re, like,
practically speaking, you can’t do that because real life is more complicated
than just that. So what you’re generally going to do is you’re going to elect an
official and give him or her some level of freedom to kind of do things, um, you know, like on their own, I guess. So for instance, like this is why a lot of times
elected officials will say ‘Hey,you know, this is my platform. I’m running because
of this, you know, these are my priorities this is what I intend on doing, blah, blah, blah. So, I mean, it’s kind of arguable about whether or not politicians keep their promises,
but the the idea is that you elect an official based on a broader set of goals and
then the actual detail day-to-day about how they accomplish those goals a lot of
times it’s left up to the individual politician. So hopefully if that
makes sense, let me sort of illustrate it with an example. So again let’s say we’re talking about a mayor and if it’s a mayor – and let’s just
say in my scenario that the mayor has the responsibility of creating a budget
for the city each year . And the mayor has, you know, discretion about how to
allocate funds. Most of the time – to be honest – it’s probably a situation where
the mayor doesn’t have enough money to fund everything so there’s gonna have to
be some cuts here and there, some increases here and there. So it’s not a
simple matter of the mayor can just give every department in the city whatever
money they want. So let’s say, for instance, that the mayor, this mayor, this
particular mayor’s priority is school funding. So they’re gonna, you know, school funding has to be a 100 percent because this mayor really feels strongly
about that. And in order to fund it because, again you know there’s not
enough money to go around, in order to fund it properly, the mayor has to cut
money from somewhere and let’s just say, for instance, that the mayor decides to cut
it from police, fire, and just kind of public safety generally. Now if you’re in,
like a member of the of the electorate, like if you live in the city, and you
just happen to disagree with how this mayor’s doing it like, let’s just say
that he’s cutting – this mayor is a he – let’s say he’s cutting public safety,
but that you don’t think that’s correct and you think instead that the mayor
should cut from – I don’t know – city administration or something. Is that
something that you would sue the, the like to sue the mayor for? I would
submit that the answer to that is no. So if that is your situation, let’s say, the
mayor is doing something that you don’t like because the mayor’s priorities are
different than yours, your remedy is not, like is not to sue the mayor. Your remedy is to basically recall the mayor, for example, your remedy is to vote for a
different mayor next time, your remedy is to campaign for a different mayoral
candidate next time, let’s say. Your remedy is not to sue in court, but it’s
to remove this mayor in some way. Yeah hopefully that kind of makes sense. I
don’t mean to say by virtue of this example that you can never sue a mayor.
So to kind of continue with my budget example, let’s say, for instance, that
the mayor is, you know, cutting funding from certain departments in order to
increase funding for other departments. That’s something that, you know, let’s
just say for sake of argument, is within the mayor’s, you know, ability, discretion
to do. If you disagree then, you know, you don’t sue for that, you generally vote
for a different mayor, recall the current mayor, etc. However, let’s say that the may,
the mayor’s, er, sorry, let’s say that the city’s laws rather, the city’s laws require
that the mayor produce a budget – like, you know, compose a budget – submit the budget for public comment for 30 days, and during those 30 days, the public has an
opportunity to, to, you know, submit comments, to critique the, the budget
proposal, etc. At the end of the, the 30 days let’s say, maybe something has to
happen and may be a sufficient number of negative comments means that the mayor has to go back and redo it or something. So let’s say that there is a hard and fast
law that applies here that basically says the mayor has to give the public at
least 30 days to comment on this proposed budget. And let’s say for sake of argument again that this mayor has not done that. So let’s say that the
mayor doesn’t do the 30 day comment period, let’s say the mayor only gives it
two weeks, let’s say the mayor doesn’t do the comment, doesn’t do the public
comment period at all. So the public, the public has no ability to comment on
this proposed budget. Can you sue for that? Well, okay, so this is again, this is
my example, but I would say that those, that situation is fundamentally
different. So on the one hand, you have the mayor who is allocating money in a
way that you don’t like. On the other hand you have a mayor who is not following the law, the the law about public comment, let’s say. So I would say that
these two situations are different. You recall the mayor, you vote for a different
mayor, etc. This one I’m saying, I’m thinking that you probably could sue. I
haven’t done it myself and, you know, this is completely made up, but these two
situations are basically different. You might be able to sue here, probably not
here. So the idea, I guess, if you can kind of understand that these two situations
are different and your remedies will be different. Yeah that’s what Political
Question doctrine is basically in a nutshell. So the way that I learned about Political Question doctrine, actually in law school,
I want to say — I don’t remember the name of the case — but it was a case involving
the Secretary of the Interior, the US Secretary of the Interior, and it was
something where he was doing something about conservation of a landmark or
something where he designated something to be a like a, like historical monument
or a national landmark, wildlife preserve, or something and he, I guess, didn’t – I’m
stretching here – but I think I want to say that he didn’t designate it in such
a way that this particular conservation group wanted. So this conservation,
conservation group sued and they basically lost because the, you know, the
court basically said ‘Well, hey, you know, if you disagree with how this elected
official is doing his or her, er, how this political official is doing his or
her job, your remedy is not to sue, but your remedy is to convince the President
to replace the Secretary of the Interior, your remedy is to, you know, vote for a
different President who appoints a Secretary of Interior that you like
better, etc, etc. So hopefully that kind of made sense. Based on that, on that
description, I’m wondering if some of you actually know the case that I’m talking
about. If you do leave me a comment down below. Just for the life of me, I don’t
remember that case. I remember the facts sort of, but not the case name. So if that
makes sense, I’m going to mention a case here. The case is called Baker versus
Carr which I’ll write over here as well as a link down below. It’s a US Supreme
Court case from 1962 and that one actually is basically the landmark case
that goes over Political Question doctrine. It goes over, there’s a six part
test that Political Question doctrine kind of involves about what is, you know,
more likely to be, you know, something that the courts will not decide for
political question reasons. I’m not going to describe the six part test right here
because if you read it, it actually is quite involved. The, like the Baker vs
Carr case goes over it. If I can – no promises – but if I can fit the six part
test down in the description below, I’ll go ahead and do that, but there’s a six
part test basically in the Baker case that goes over what Political Question
doctrine is. So hopefully all of that made sense. To kind of summarize, the Political Question doctrine is something that basically acknowledges
that certain problems are not things that, you know, the courts are really
empowered or authorized to resolve. So if you read enough court cases in
California, a lot of times you’ll see that courts often times will say ‘Well, you
know, we are a judicial branch. This is not our job to make law. You know, we, we
ask that the the legislative branch do this or, you know, we leave that to the
Legislature, or we leave that to the President or the Governor or whoever,’
like courts a lot of times in their own decisions will acknowledge that they
only have certain abilities as the judicial branch of government. The
Legislative branch has certain responsibilities, the Executive branch
has certain responsibilities, and so on. So yeah, I guess hopefully all that makes
sense. The reason I wanted to bring up political question is because it’s
something that if you sue the government you are inevitably going to run into
political question in some way shape or form. Yeah, suing the government is not, well sorry, let me back up. This is one way in which suing the government, for example, is different than suing a private
individual, a company, things like that. So yeah, again, hopefully all that helped. Go
ahead and, you know, watch this video again. Share it, comment, like, subscribe all that stuff and I will talk to you guys next time.
Thanks.

 

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