Goldwater v. Carter

Opinion

 [*996]   [**533]  Certiorari granted, judgment vacated, and case remanded with directions to dismiss the complaint. MR. JUSTICE MARSHALL concurs in the result. MR. JUSTICE POWELL concurs in the judgment  [*997]  and filed a statement. MR. JUSTICE REHNQUIST concurs in the judgment and filed a statement in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE STEVENS join. MR. JUSTICE WHITE and MR. JUSTICE BLACKMUN join in the grant of the petition for writ of certiorari but would set the case for argument and give it plenary consideration. MR. JUSTICE BLACKMUN filed a statement in which MR. JUSTICE WHITE joins. MR. JUSTICE BRENNAN would grant the petition for writ of certiorari and affirm the judgment of the Court of Appeals and filed a statement. Reported below: -- U.S. App. D.C.    ,     F. 2d    .

Concur by: POWELL; REHNQUIST

Concur

MR. JUSTICE POWELL, concurring.

Although I agree with the result reached by the Court, I would dismiss the complaint as not ripe for judicial review.

 [**534]  I

This Court has recognized that an issue should not be decided if it is not ripe for judicial review. Buckley v. Valeo , 424 U.S. 1, 113-114 (1976) (per curiam ). Prudential considerations persuade  [****2]  me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political rather than legal considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.

In this case, a few Members of Congress claim that the President's action in terminating the treaty with Taiwan has deprived them of their constitutional role with respect to  [*998]  a change in the supreme law of the land. Congress has taken no official action. In the present posture of this case, we do not know whether there ever will be an actual confrontation between the Legislative and Executive Branches. Although the Senate has considered a resolution  [****3]  declaring that Senate approval is necessary for the termination of any mutual defense treaty, see 125 Cong. Rec. S7015, S7038-S7039 (June 6, 1979), no final vote has been taken on the resolution. See id ., at S16683-S16692 (Nov. 15, 1979). Moreover, it is unclear whether the resolution would have retroactive effect. See id ., at S7054-S7064 (June 6, 1979); id ., at S7862 (June 18, 1979). It cannot be said that either the Senate or the House has rejected the President's claim. If the Congress chooses not to confront the President, it is not our task to do so. I therefore concur in the dismissal of this case.

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