Excising Federalism: The Consequences of Baker v. Carr Beyond the Electoral Arena

Note — Volume 101, Issue 8

101 Va. L. Rev. 2263
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Some scholars argue that, because the post-Baker political question doctrine only implicates separation of powers at the federal level, the doctrine should be subsumed into standing doctrine, as the latter is similarly grounded in separation-of-powers concerns. This Note illustrates that we should not be too quick to relegate the political question doctrine to the doctrinal dustbin. As the history of the doctrine shows, a concern with federal courts’ involvement in the affairs of state governments in-formed the Court’s application of the doctrine before Justice Brennan transformed it in Baker. And as the examples of post-Baker cases like Larsen illustrate, there are areas of state governance where federal courts could use a doctrinal hook to avoid entangling themselves in state governmental procedures.

Justice Frankfurter argued in his Baker dissent that any list of factors for deciding justiciability should include federalism. As he put it, the “reluctance to interfere with matters of state government in the absence of an unquestionable and effectively enforceable mandate,” along with factors similar to those in Justice Brennan’s list, had “been decisive of the settled line of cases” dealing with Guarantee Clause challenges to state governmental action. As this Note has shown, Justice Frankfurter’s view not only carries historical weight, but his own list of relevant factors in political question cases could better handle cases like Larsen. Justice Brennan stated in Baker, “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Ironically, his excision of federalism from the political question doctrine could promote the disorder he feared in cases like Larsen or DeJulio. Reincorporating federalism into the political question doctrine would therefore not only adhere to historical practice, but would also promote the “maintenance of governmental order” between the federal government and the states.

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