Political Question Doctrine: Current Doctrine

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Baker v. Carr

In Baker v. Carr,1 the Court undertook a major reformulation and rationalization of the political question doctrine, which has considerably narrowed its application. Following Baker, the whole of the apportionment-districting-election restriction controversy previously immune to federal-court adjudication was considered and decided on the merits,2 and the Court's subsequent rejection of the doctrine in other cases disclosed narrowing in other areas as well.3

According to Justice Brennan, who delivered the opinion of the Court, “it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the 'political question.'” 4 Thus, the “nonjusticiability of a political question is primarily a function of the separation of powers.” 5 “Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.” 6 Following a discussion of several areas in which the doctrine had been used, Justice Brennan continued: “It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers.”

The Justice went on to list a variety of factors to be considered, noting that “[p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 7

Powell v. McCormack

Because Baker had apparently restricted the political question doctrine to intrafederal issues, there was no discussion of the doctrine when the Court held that it had power to review and overturn a state legislature's refusal to seat a member-elect because of his expressed views.8 But in Powell v. McCormack,9 the Court was confronted with a challenge to the exclusion of a member-elect by the United States House of Representatives. Its determination that the political question doctrine did not bar its review of the challenge indicates the narrowness of application of the doctrine in its present state. Taking Justice Brennan's formulation in Baker of the factors that go to make up a political question,10 Chief Justice Warren determined that the only critical one in this case was whether there was a “textually demonstrable constitutional commitment” to the House to determine in its sole discretion the qualifications of members.11

In order to determine whether there was a textual commitment, the Court reviewed the Constitution, the Convention proceedings, and English and United States legislative practice to ascertain what power had been conferred on the House to judge the qualifications of its members; finding that the Constitution vested the House with power only to look at the qualifications of age, residency, and citizenship, the Court thus decided that in passing on Powell's conduct and character the House had exceeded the powers committed to it and thus judicial review was not barred by this factor of the political question doctrine.12 Although this approach accords with the “classicist” theory of judicial review,13 it circumscribes the political question doctrine severely, inasmuch as all constitutional questions turn on whether a governmental body has exceeded its specified powers, a determination the Court traditionally makes, whereas traditionally the doctrine precluded the Court from inquiring whether the governmental body had exceeded its powers. In short, the political question consideration may now be one on the merits rather than a decision not to decide.

Chief Justice Warren disposed of the other factors present in political question cases in slightly more than a page. Because resolution of the question turned on an interpretation of the Constitution, a judicial function which must sometimes be exercised “at variance with the construction given the document by another branch,” there was no lack of respect shown another branch. Nor, because the Court is the “ultimate interpreter of the Constitution,” will there be “multifarious pronouncements by various departments on one question,” nor, since the Court is merely interpreting the Constitution, is there an “initial policy determination” not suitable for courts. Finally, “judicially . . . manageable standards” are present in the text of the Constitution.14 . The effect of Powell was to discard all the Baker factors inhering in a political question, with the exception of the textual commitment factor, and that was interpreted in such a manner as seldom if ever to preclude a judicial decision on the merits.

The Doctrine Reappears

Despite the apparent narrowing of the doctrine in Baker and Powell, the Court has not abandoned it. Reversing a lower federal court ruling subjecting the training and discipline of National Guard troops to court review and supervision, the Court held that under Article I, § 8, cl. 16, the organizing, arming, and disciplining of such troops are committed to Congress and by congressional enactment to the Executive Branch. “It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches, directly responsible—as the Judicial Branch is not—to the elective process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.” 15

The suggestion of the infirmity of the political question doctrine was rejected, since “because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise.” 16 In staying a grant of remedial relief in another case, the Court strongly suggested that the actions of political parties in national nominating conventions may also present issues not meet for judicial resolution.17 A challenge to the Senate's interpretation of and exercise of its impeachment powers was held to be nonjusticiable; there was a textually demonstrable commitment of the issue to the Senate, and there was a lack of judicially discoverable and manageable standards for resolving the issue.18

Despite the occasional resort to the doctrine, the Court continues to reject its application in language that confines its scope. Thus, when parties challenged the actions of the Secretary of Commerce in declining to certify, as required by statute, that Japanese whaling practices undermined the effectiveness of international conventions, the Court rejected the Government's argument that the political question doctrine precluded decision on the merits. The Court's prime responsibility, it said, is to interpret statutes, treaties, and executive agreements; the interplay of the statutes and the agreements in this case implicated the foreign relations of the Nation. “But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.” 19

After requesting argument on the issue, the Court held that a challenge to a statute on the ground that it did not originate in the House of Representatives as required by the Origination Clause was justiciable.20 Turning back reliance on the various factors set out in Baker, in much the same tone as in Powell v. McCormack, the Court continued to evidence the view that only questions textually committed to another branch are political questions. Invalidation of a statute because it did not originate in the right House would not demonstrate a “lack of respect” for the House that passed the bill. “[D]isrespect,” in the sense of rejecting Congress’s reading of the Constitution, “cannot be sufficient to create a political question. If it were every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible.” 21 That the House of Representatives has the power and incentives to protect its prerogatives by not passing a bill violating the Origination Clause did not make this case nonjusticiable. “[T]he fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question.” 22

The Court also rejected the contention that, because the case did not involve a matter of individual rights, it ought not be adjudicated. Political questions are not restricted to one kind of claim, but the Court frequently has decided separation-of-power cases brought by people in their individual capacities. Moreover, the allocation of powers within a branch, just as the separation of powers among branches, is designed to safeguard liberty.23 Finally, the Court was sanguine that it could develop “judicially manageable standards” for disposing of Origination Clause cases, and, thus, it did not view the issue as political in that context.24

In Zivotosky v. Clinton,25 the Court declined to find a political question where a citizen born in Jerusalem sought, pursuant to federal statute, to have “Israel” listed on his passport as his place of birth, the Executive Branch having declined to recognize Israeli sovereignly over that city. Justice Roberts, for the Court, failed to even acknowledge the numerous factors set forth in Justice Brennan's Baker opinion save two — whether there is a textually demonstrable commitment of the issue to another department or a lack of judicially discoverable and manageable standards for resolving it.26 The Court noted that while the decision as whether or not to recognized Jerusalem as the capital of Israel might be exclusively the province of the Executive Branch, there is “no exclusive commitment to the Executive of the power to determine the constitutionality of a statute,” 27 such as whether Congress is encroaching on Presidential powers. Similarly, this latter question, while perhaps a difficult one, is amenable to the type of separation of powers “standards” used by the Court in other separation of powers cases.

In Rucho v. Common Cause, the Supreme Court articulated a slightly different statement of the political question doctrine in holding that claims of unconstitutionally partisan gerrymandering—that is, claims that the boundaries of a legislative district were impermissibly based on partisan considerations—were nonjusticiable.28 Quoting a prior opinion from Justice Kennedy, the Court said that “[a]ny standard for resolving such claims must be grounded in a ‘limited and precise rationale’ and be ‘clear, manageable, and politically neutral.’” 29 After looking to the Constitution and to various tests proposed by the parties, the Rucho Court concluded that it could identify no “limited and precise standard that is judicially discernable and manageable” 30 for evaluating “when partisan activity goes too far.” 31 Viewing plaintiffs in political gerrymandering cases to be asking “courts to make their own political judgment about how much representation particular political parties deserve,” the Court held that “federal courts are not equipped to apportion political power as a matter of fairness.” 32 Chief Justice Roberts’s opinion for the Court emphasized that intervening in disputes over partisan redistricting meant that federal courts would be injecting themselves “into the most heated partisan issues,” 33 and that courts “would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” 34 It was against this background that the Court concluded that it was “vital” to “act only in accord with especially clear standards.” 35

Footnotes

1

369 U.S. 186 (1962).

2

Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Hadley v. Junior College District, 397 U.S. 50 (1970) (apportionment and districting, congressional, legislative, and local); Gray v. Sanders, 372 U.S. 368 (1963) (county unit system weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969) (geographic dispersion of persons signing nominating petitions).

3

See, e.g., Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doctrine continues to be sighted.

4

Baker v. Carr, 369 U.S. 186, 210 (1962). This formulation fails to explain cases like Moyer v. Peabody, 212 U.S. 78 (1909), in which the conclusion of the governor of a state that insurrection existed or was imminent justifying suspension of constitutional rights was deemed binding on the Court. Cf. Sterling v. Constantin, 287 U.S. 378 (1932). The political question doctrine was applied in cases challenging the regularity of enactments of territorial legislatures. Harwood v. Wentworth, 162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649 (1894); Clough v. Curtis, 134 U.S. 361 (1890). See also In re Sawyer, 124 U.S. 200 (1888); Walton v. House of Representatives, 265 U.S. 487 (1924).

5

369 U.S. at 210.

6

369 U.S. at 211.

7

369 U.S. at 217. It remains unclear after Baker whether the political question doctrine is applicable solely to intrafederal issues or only primarily, so that the existence of one or more of these factors in a case involving, say, a state, might still give rise to nonjusticiability. At one point, id. at 210, Justice Brennan says that nonjusticiability of a political question is “primarily” a function of separation of powers but in the immediately preceding paragraph he states that “it is” the intrafederal aspect “and not the federal judiciary’s relationship to the States” that raises political questions. But subsequently, id. at 226, he balances the present case, which involves a state and not a branch of the Federal Government, against each of the factors listed in the instant quotation and notes that none apply. His discussion of why Guarantee Clause cases are political presents much the same difficulty, id. at 222–26, because he joins the conclusion that the clause commits resolution of such issues to Congress with the assertion that the clause contains no “criteria by which a court could determine which form of government was republican,” id. at 222, a factor not present when the Equal Protection Clause is relied on. Id. at 226.

8

Bond v. Floyd, 385 U.S. 116 (1966).

9

395 U.S. 486 (1969).

10

Baker v. Carr, 369 U.S. 186, 217 (1962).

11

395 U.S. at 319.

12

395 U.S. at 519–47. The Court noted, however, that even if this conclusion had not been reached from unambiguous evidence, the result would have followed from other considerations. Id. at 547–48.

13

See H. Wechsler, supra at 11-12. Professor Wechsler believed that congressional decisions about seating members were immune to review. Id. Chief Justice Warren noted that “federal courts might still be barred by the political question doctrine from reviewing the House’s factual determination that a member did not meet one of the standing qualifications. This is an issue not presented in this case and we express no view as to its resolution.” Powell v. McCormack, 395 U.S. 486, 521 n.42 (1969). See also id. at 507 n.27 (reservation on limitations that might exist on Congress’s power to expel or otherwise punish a sitting member).

14

395 U.S. at 548–549. With the formulation of Chief Justice Warren, compare that of then-Judge Burger in the lower court. 395 F.2d 577, 591–96 (D.C. Cir. 1968).

15

Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar prudential concerns seem to underlay, though they did not provide the formal basis for, the decisions in O’Shea v. Littleton, 414 U.S. 488 (1974), and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974).

16

413 U.S. at 11. Other considerations of justiciability, however, id. at 10, preclude using the case as square precedent on political questions. Notice that in Scheuer v. Rhodes, 416 U.S. 232, 249 (1974), the Court denied that the Gilligan v. Morgan holding barred adjudication of damage actions brought against state officials by the estates of students killed in the course of the conduct that gave rise to both cases.

17

O’Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The issue was mooted by the passage of time and was not thereafter considered on the merits by the Court. Id. at 816 (remanding to dismiss as moot). It was also not before the Court in Cousins v. Wigoda, 419 U.S. 477 (1975), but it was alluded to there. See id. at 483 n.4, and id. at 491 (Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief Justice Burger using political question analysis to dismiss a challenge to presidential action). But see id. at 997, 998 (Justice Powell rejecting analysis for this type of case).

18

Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its decision as perfectly consonant with Powell v. McCormack. Id. at 236–38.

19

Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221, 230 (1986).

20

United States v. Munoz-Flores, 495 U.S. 385 (1990).

21

495 U.S. at 390.

22

495 U.S. at 393.

23

495 U.S. at 393–95.

24

495 U.S. at 395–96.

25

566 U.S. ___, No. 10-699, slip op. (2010).

26

This left it to Justice Sotomayor and Justice Breyer to raise and address the other considerations, respectively, in concurrence and dissent.

27

566 U.S. ___, No. 10-699, slip op. at 8.

28

588 U.S. ____, Nos. 18–422, 18–726, slip op. at 34 (2019).

29

Id. at 15 (quoting Vieth v. Jubelirer, 541 U.S. 267, 306, 308 (2004) (Kennedy, J., concurring)).

30

Id. at 21.

31

Id. at 26; see also id. at 28 (concluding that the Court was left with an “unanswerable question” : “How much political motivation and effect is too much?” (quoting Vieth, 541 U.S. at 296–97 (plurality opinion))).

32

Id. at 17.

33

Id. (quoting Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O’Connor, J., concurring in the judgment) (internal quotation mark omitted)).

34

Id. (quoting Vieth, 541 U.S. at 307 (Kennedy, J., concurring) (internal quotation mark omitted).

35

Id.