The Constitution does not generally apply to private entities or actors; there must be a state law passed or action through officers or agents of the state, which is adverse to the rights of the citizen seeking our adjudication. The Civil Rights Cases.
COMEDOWN: While the state action doctrine may have serious costs: absent statutory restrictions, private conduct can infringe or trample even the most basic of rights, this court likes the state action doctrine because it preserves a zone of private autonomy and advances federalism. Justiciability
1. Prohibition against Advisory Opinions
2. Political Question Doctrine
6. Striping Jurisdiction
The issue is whether THIS would is not justiciable because it represents an advisory opinion
In Plaut v. Spendthrift Farms Congress attempted to overturn one of our decisions dismissing certain cases. We invalidated that law as an unconstitutional violation of separation of powers. The Constitution gives the federal judiciary the power not merely to rule on cases but to decide them and render dispositive judgments – If our opinions are not the final opinions on the matter, then they serve as an advisory opinion, and we prohibit those.
The issue of justiciability turns on whether this Court should restrain itself because adjudication involves a political question. As Justice Frankfurter observed in his dissent in Baker v. Carr, avoidance of political questions preserves this Court’s “fragile political legitimacy.”
Political Question: Separation of powers analysis
Federal - Foreign affairs:
It may be that discarding this case would allow the political branches -- branches with superior expertise in dealing with foreign affairs and nations -- to exercise superior judgment pursuant to their Article I and II powers. Indeed, it might be said that we lack judicially manageable standards because there is textual demonstrable commitment to the Executive and Congressional branches in Article I and Article II of the Constitution that prevents our judicial intrusion. CONGRESS will argue that because our remedy might involve us as to oversee the day-to-day activities of the EXECUTIVE branch IN DETERMINING WHO GETS WHAT PROCESS FROM THE GOVERNMENT, any intrusion by us would offend our understanding of separation of powers.
Yet, we believe that the judicial authority to determine the constitutionality of laws in Article III “cases and controversies” is based on the premise that the "powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." (Marbury v. Madison) Furthermore, it is emphatically the province and duty of the judiciary to say what the law is, so we must involve ourselves to enforce the “writteness” of our constitution. While Congress and the President might argue that it is not the sole province and exclusive duty of the judiciary to say what the law is, we do not find that argument convincing; we do not find the political question doctrine a convincing restraint when on our power when the political branches have over stepped their Constitutional boundaries.
Moreover, this court is willing to get involved in political question cases because those are often the issues that need resolution. While we acknowledge our inability to effect social change with the stroke of a pen, we believe that we can set the tide in the right direction. It is inappropriate to leave constitutional questions to the political branches, this is the purpose of the judiciary (see john marshall in Marbury v. Madison). We put things in the constitution to insulate them from majoritarian will, our involvement in political matters, hopefully, ensures that those matters are protected and enforced. Politically accountable bodies cannot be entrusted to enforce any part of a document that exists to restrain them....