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Assignments for Sept. 15 and 22

I. Reminders:

Proposed topic on your course work (paper on a judicial review or constitutional litigation paper)
is due on Sept. 29th. If you want to discuss, let’s do it by email. Send it at
arturodbrion@gmail.com

Our movie presentation will be on October 6. Pls come promptly at 9 am.

II. For Discussion:

A. We finish up and review Imbong; IBP v. Zamora; Baker v. Carr; and Ocampo v.
Enriquez.

a. In Imbong, focus on the textual analysis of Sec1, Article VIII in the Brion Concurring
Opinion.

b. In IBP v. Zamora, focus on the political question discussion of ponencia and CJ Puno
(where and how did they differ?); and on theinterface of the “standing” element and
political question doctrine.

c. In Ocampo, focus on interface of hierarchy of courts, political question doctrine and

justiciability in general.

d. In Baker v. Carr, focus on the examples given to come up with the standards for the
application of the political question doctrine. (GENERAL SOURCE OF POLITICAL
QUESTION DOCTRINE)

1. is found a textually demonstrable constitutional commitment of the issue to a

coordinate political department;
2. or a lack of judicially discoverable and manageable standards for resolving it;
3. or the impossibility of deciding without an initial policy determination of a
kind clearly for non judicial discretion; or
4. the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or
5. an unusual need for unquestioning adherence to a political decision already
made; or
6. the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.

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EXAMPLE:
1. Luther v. Borden case case:
which State was then under martial law to defend itself from active insurrection; that the
plaintiff was engaged in that insurrection, and that they entered under orders to arrest the
plaintiff. The case arose "out of the unfortunate political differences which agitated the
people of Rhode Island in 1841 and 1842," 7 How and which had resulted in a situation
wherein two groups laid competing claims to recognition as the lawful government.
The court cannot determine which power is to recognize as a government
The court refuses to hear the case
It’s the President to decide

"in case of an insurrection in any State against the government thereof, it shall be
lawful for the President of the United States, on application of the legislature of such State
or of the executive (when the legislature cannot be convened), to call forth such number of
the militia of any other State or States, as may be applied for, as he may judge sufficient to
suppress such insurrection."

"By this act, the power of deciding whether the exigency had arisen upon which the
government of the United States is bound to interfere is given to the President. . . ."

Guaranty Clause: protection against invasion

2. Marshall v. Beckham:
 Kentucky's resolution of contested gubernatorial election deprived voters of
republican government held nonjusticiable

3. Pacific v. Oregon:
 Claim that initiative and referendum negated republican government held
nonjusticiable

4. Kiernan v. Portland
 claim that municipal charter amendment per municipal initiative and referendum
negated republican government held nonjusticiable

5. Marshall v. Dye
 claim that Indiana's constitutional amendment procedure negated republican
government held nonjusticiable

6. O’Neill v. Leamer
 claim that delegation to court of power to form drainage districts negated
republican government held "futile"

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7. Ohio v. Davis
 claim that invalidation of state reapportionment statute per referendum negates
republican government held nonjusticiable

8. Ohio v. Akrion
 claim that workmen's compensation violates republican government held
nonjusticiable

9. Highland v Agnew
 claim that delegation to agency of power to control milk prices violated republican
government rejected

Its essentially political nature is at once made manifest by understanding that the assault
which the contention here advanced makes it [sic] not on the tax as a tax, but on the State as
a State. It is addressed to the framework and political character of the government by
which the statute levying the tax was passed.

It is the government, the political entity, which (reducing the case to its essence) is called to
the bar of this court not for the purpose of testing judicially some exercise of power
assailed, on the ground that its exertion has injuriously affected the rights of an individual
because of repugnancy to some constitutional limitation, but to demand of the State that it
establish its right to exist as a State, republican in form."

- Constitutional limitation
- Not the right to exist as a state as republican form

Addendum via e-mail

7. In League of Cities. Aside from assigned Aug 24, 2010 Reso, read also League of Cities
Wikipedia so u can fully understand the background of the case. Thanks

8. In DAP, read carefully my Opinion as I extensively discussed Justiciability and

Operative Fact Doctrine aspects.

BRION. J:
 The Court has 3 powers:
o Traditional Justiciable Cases: purely demandable and enforceable rights
 Committed a violation – charged with i.e. libel
o Traditional but additionally involving jurisdictional and constitutional

o Pure constitutional disputes attended by GADALEJ

DAP case is the 3rd kind

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In order to successfully invoke the Court’s power of expanded judicial review – must satisfy two
essential requisites:
 first, they must demonstrate a prima facie showing of grave abuse of discretion on the
part of the governmental body’s actions; and
 second, they must prove that they relate to matters of transcendental importance to the
nation.

Prima Facie showing

In fact, the petitions – quoting the press release published in the respondents’ website –
enumerated disbursements released through the DAP;39 it also included admissions from no less
than Secretary Abad regarding the use of funds from the DAP to fund projects identified by
legislators on top of their regular PDAF allocations.

While the Court, unlike the trial courts, does not conduct proceedings to receive evidence,
it must recognize as established the facts admitted or undisputedly represented by the parties
themselves.

1. First, the existence of the DAP itself, the justification for its creation, the respondent’s legal characterization
of the source of DAP funds (i.e., unobligated allotments and unreleased appropriations for slow moving
projects) and the various purposes for which the DAP funds would be used (i.e., for PDAF augmentation and
for “aiding” other branches of government and other constitutional bodies) are clearly and indisputably
shown.

2. Second, the respondents’ undisputed realignment of funds from one point to another inevitably raised
questions that, as discussed above, are ripe for constitutional scrutiny

To avoid any confusion, let me restate and clarify my view that while the COA can rule
on the legality or regularity of an item of expense, it cannot rule on the constitutionality
of the measure that made the expenditure possible. This issue remains for the courts, not
for the COA, to decide upon.

JUSTICIABILITY and POLITICAL QUESTIONS:

Justiciability: inherently susceptible of being decided on grounds

recognized by law

This expansion necessarily gives rise to a host of questions: does our constitutional
duty end with the determination of the presence or absence of grave abuse of
discretion and the decision on the constitutional status of a challenged governmental
action? To what extent can we, acting within our judicial power and the power of
judicial review, clarify the consequences of our decision?

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B. New matters for discussion:

Article 8, Civil Code

 Article 8. Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines. (n)

o Lazatin v. Desierto, G.R. No. 147097

- Constitutionality of Omb Act  but already setteld in Acop
and Perez

o Ting v. Lopez-Ting, G.R. No. 166562, March 31, 2009

- Not applying the Molina case; explained stare decesis

Doctrine of hierarchy of courts

o CREBA v Sec of Agrarian Reform, G.R. No. 183409, June 18,

2010.

Effect of declaration of unconstitutionality

o League of Cities v. Comelec, G.R. No. 176951, August 24,

2010 –

o Araullo v. Aquino, G.R. No. 209287, July 1, 2014; see both the
original ruling and the ruling on the MR on the operative fact
doctrine.

o Spouses Imbong v. Executive Secretary, cf. ALFI v. Garin,

G.R. No. 217872, August 24, 2016