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Reply #119: You have finally convinced me - you are not a lawyer [View All]

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Home » Discuss » Archives » General Discussion: Presidential (Through Nov 2009) Donate to DU
jberryhill Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Dec-06-08 10:44 PM
Response to Reply #113
119. You have finally convinced me - you are not a lawyer
Edited on Sat Dec-06-08 10:52 PM by jberryhill
You have some sort of background in Poli Sci or legal philosophy, but you have absolutely no understanding of how legal precedent works in practice.

Yes - every decision is to decide a "case or controversy". Whether a particular decision is intended to state a general principle applicable to similar circumstances is something that is controlled by the language of the decision. Go look up "sui generis".

Finally, your understanding of the "political question" doctrine is junk. The situation here is "political" only in the sense that it involves an election. Whether Obama is a natural born citizen of the US by virtue of having been born in Hawaii is a fairly mundane question of law. As a question of fact, his Hawaiian birth is admitted in the Donofrio case.

What the "political question" doctrine is, is the governmental equivalent of the "business judgment rule". A court can decide whether an official has the power to decide to do X or Y. When people bring suits to the effect of whether the official should have decided X when the official decided Y, then the only question for the court is, as stated, whether it was in the power of that official to select between those options. If the official had the power to choose between X or Y, then any objection to how that official chose is a "political question". You are simply confused by different senses of the word "politics", and grossly misunderstand the meaning and application of the PQ doctrine. As noted above, your conflation of various legal concepts is most likely due to having a good - in fact exceptional -understanding of poli sci or legal theory or philosophy, but utterly no familiarity with the nuts and bolts.
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