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Under the so-called political question doctrine there are some issues, particularly pertaining to national security, that are simply not justiciable — that is, the courts rightly stay away from them.

But she added that “courts may strike down an invocation of the Alien Enemies Act under modern due process and equal protection law, justiciable grounds for checking abusive presidential action.”

“But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.”

Yet it argues, in direct opposition to the legislators, that Section 3 is self-implementing and fully justiciable — that is, it requires no determination by Congress and can be decided by the court.

One of the most striking aspects of the Colorado Supreme Court’s ruling is how much of the 213-page opinion is devoted to institutional humility: Are the issues justiciable?