That problem could be resolved if Congress were to re-enact the Independent Counsel statute.
The political question doctrine “is justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision.” How could that solution be applied here with any effect?
It could also be resolved if Bush would have a personality change and roll over. If wishes were horses, then beggars would ride, as my mom says.
Sorry. I’m not going to play the “but wiki says” game. The sentence that you purport to have quoted is not the limits of the political question doctrine. Moreover, as I pointed out, this is all speculation until we understand what the question presented is.
Before we get all misty-eyed over how true to their judicial principles the Republican appointees are, we should all take a moment and remember the SCOTUS decision wrt the 2000 election. You remember, that unique, never-to-be-revisited decision that’s not to be used as a precedent ever, ever.
I think the SCOTUS deserves a lot more in the way of :dubious: than our conservative friends would have us think.
The difference is, Congress can re-enact the Independent Counsel statute.
Thanks for the link, Campion - nice to see that my memory is still working, if erratically. That was one of the clearest summaries of the unitary executive theory that I’ve read, and helped to bring it into context for me. (Since we have a merged execuive/legislative up here, this type of issue is one of the ones where you have to speak slowly and use short words for me to understand. 
)
Getting back to the question of how the courts might get involved, I certainly take your point that we need to wait to see how it possibly gets there to determine if the courts might deal with the issue, or defer. But it would seem to me that the hypothetical situation of a person actually indicted by a grand jury with a federal crime of lying to Congress would be pretty far from the political questions doctrine, wouldn’t it? I would think that determining allegations of criminal misconduct is emphatically within the core areas of the judicial function, to paraphrase Marshall C.J. Wouldn’t that not be weighing in between the two branches, but more a case of ensuring that citizens follow the law?
John Dean (yes, that John Dean) has written an interesting article on this issue: New Developments in the U.S. Attorney Controversy: Why Bush Refuses to Allow Karl Rove and Harriet Miers to Testify Before Congress, and What Role New White House Counsel Fred Fielding May Play
That’s what I like, a committment to the the important things! If they had cute girls, I’d have joined. 
Like this any better? 
Hah. You can play your “I’m just a simple Canuck lawyer” schtick elsewhere, sir: I’m on to you!
But you raise an interesting point; we’re all about the checks and balances presented by having our government split into three branches (and, frankly, that’s a big problem with the unitary executive theory; it puts far too much power in the executive’s hands because it limits the legislative’s ability to check him). How do you deal with having a merged executive/legislature – who polices?
Remember, though, that the US Attorney is the one who must present to the grand jury. So if the USA refuses to present the subpoena to the grand jury, the grand jury won’t indict. And then we’re left in a situation where the executive has blocked the legislature from seeking judicial intervention. (Query: could Joe Citizen seek a writ of mandamus against the USA? I don’t think so; I suspect that whether to present to the grand jury would be discretionary. But maybe there would be some other mechanism to reach the courts.)
And, of course, when it reaches the courts it’s always in how the question’s presented. For example, compare these questions presented:
or
I do think that under the second question, one could argue that it’s a political question. And, frankly, given the current composition of the Supreme Court, I’m not convinced that they’d take the case, rather than dodging it on justiciability grounds.
I assure you, sir, that at my law school, the cute girls were in the Federalist Society.
No. If wikipedia is a poorly annotated and inauthoritative source for legal research (which it is, and, frankly, wrong or incomplete more than it is right or helpful), why on earth would I want something that’s all of that and openly biased on top of it?
I can’t even spell executive correctly on the first go - you expect me to follow the nuances of a unitary executive constitutional theory right out of the box?
Well, to start with, there’s Her Majesty’s Loyal Opposition, which has the right to question the PM and Cabinet ministers on any topic every day Parliament sits, during Question Period, as well as through the parliamentary committee process, such as the committees of public acounts and estimates. In addition to oral questions, the Opposition members have the right to require written returns to their questions, which can range over any aspect of the government’s operations. The Cabinet members are required to provide those written returns. That’s why our system is termed “responsible government” - the executive is responsible to the legislature for the operation of government.
Then there’s the parliamentary officers, such as the Auditor-General, who are appointed by Parliament to review the spending practices of the executive. Since the Auditor-General is accountable directly to Parliament, not to the Executive, and has a clear statutory mandate to look at the books, she provides another important check on the exectutive in her annual report.
Then there’s the press, just as in the U.S., who have the mandate to poke around at government on any issue they choose.
Another important difference is that the Exectutive in our system has no inherent constitutional authority, other than the rather limited powers of the royal prerogative. Any powers of the executive must be based on a statute passed by Parliament. There can’t be any suggestion by the Prime Minister in our system that he can interpret laws as he wishes, nor consider himself free not to follow a law that he feels intrudes on his constitutional authority - he doesn’t have any independent constitutional authority. The PM is not a constitutional officer, and only has the legal power that Parliament grants him. If there’s a dispute about the scope of a power set out in a statute, it’s decided by the courts, just like any other question of law. There’s not a “political questions” doctrine in the same way as in the U.S.
Then there’s the non-partisan, non-elected professional civil service, which includes the prosecutorial services. This is one of the big differences that I’ve noticed in our discussions on this Board, and other Canucks like matt_mcl have also commented on: it seems in the U.S. there is the assumption that every public officer has a partisan background, and exercises powers for partisan reasons. In Canada and other Commonwealth countries, the position is different - the civil service is non-partisan.
For example, our Crown prosecutors are not a partisan appointment, and are not responsible to the PM, as seems to be the case with the US Attornies and the Prez. Nor are they elected, which is often the case at the state level. They are appointed, and are insulated from political influence by a double-layer of civil servants (the Deputy Minister of the Department and the Director of Public Prosecutions in most jurisdictions). Like other civil servants, they are required by law to stay out of politics. Being a Crown prosecutor, or even the Regional Crown, is not a jumping-off point for a political career as it seems to be down south. That helps to ensure the impartiality of the Crown in cases with political implications.
There’s also the federalism aspect: although the Criminal Code is a federal statute, it’s administered by the Provinces, so the Crown prosecutors are not part of the federal civil service. That means that if there’s an allegation of criminal misconduct against members of the federal government, the prosecturial decisions are made by provincial Crown prosecutors, who are not subject to the federal Justice department.
(Another example of the principle of non-partisanship is in the adminstration of elections. Our electoral boundaries are drawn up by non-partisan committees, chaired by a federal judge (at the federal level; equivalents at the provincial level). The actual adminstration of the election is done by a non-partisan, impartial civil servant, the Chief Electoral Officer. One of the most bizarre points of the 2000 Florida fiasco, from the Canadian perspective, was that the Florida Secretary of State, in charge of the election and making controversial calls, was not only a Republican politician, but actually the co-chair of George Bush’s Florida campaign. In our system, the referee of an election isn’t also a player on one of the teams.)
And then there’s the judicial inquiry. There’s a long tradition in Canada of appointing judicial inquiries, chaired by a sitting or retired judge, to delve into an issue that has become a hot political issue. That inquiry function seems to fulfill a similar function as congressional committee hearings in the U.S. Usually, what triggers an inquiry is when an issue has been raised in Parliament, or the Auditor-General reports, or in the media, to the point that the executive feels it necessary to appoint an inquiry to look into it.
Two recent examples are the Gomery inquiry, and the Arar inquiry, both of which we’ve discussed from time to time on this board.
Gomery was an inquiry into financial misadventures by certain political operatives of the former Liberal government. It began with some damning reports from the Auditor General, which kicked up a storm in Question Period in the House. Then the media got going on it, and began digging up even more dirt. Finally, the Prime Minister felt he had to appoint a judicial inquiry to try to diffuse the situation. Judge Gomery held public hearings into the matter that brought a lot of it to light. At the same time, the Auditor-General’s report was referred to the RCMP, who conducted an investigation that led to criminal charges. Since the kickbacks in question had occurred in Quebec, the prosecutions service of the Quebec government handled the prosecutions. The whole scandal helped to bring down the government of Paul Martin, by reducing him from majority to minority in the 2004 election, and fatally weakening the Liberals in Quebec, which contibuted to their ultimate defeat in the 2006 election. So the voters are the ultimate check.
The Arar inquiry was another example. This answer’s got rather lengthy, but if you check out these two threads you’ll see how it worked in that case:
Ottawa reaches $10 million compensation deal with Canadian sent abroad to be tortured
Just thought of something else - you don’t have private prosecutions down there? Under the Canadian system, which we inherited from England, any individual can swear out an information and begin the criminal process, prosecuting it themselves on behalf of the Crown. That has occasionally been used to prod the Crown prosecutor to look at an alleged offence (e.g. - the charge of spreading false news against Ernst Zündel.)