Political question

In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question. Legal questions are deemed to be justiciable, while political questions are nonjusticiable.^[1] One scholar explained:

The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.

— John E. Finn, professor of government, 2006^[2]

A ruling of nonjusticiability will ultimately prohibit the issue that is bringing the case before the court from being able to be heard in a court of law. In the typical case where there is a finding of nonjusticiability due to the political question doctrine, the issue presented before the court is usually so specific that the Constitution gives all power to one of the coordinate political branches, or at the opposite end of the spectrum, the issue presented is so vague that the United States Constitution does not even consider it. A court can only decide issues based on law. The Constitution dictates the different legal responsibilities of each respective branch of government. If there is an issue where the court does not have the Constitution as a guide, there are no legal criteria to use. When there are no specific constitutional duties involved, the issue is to be decided through the democratic process. The court will not engage in political disputes.

A constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution to the U.S. Congress, or the President of the United States, is a political question, which judges customarily refuse to address.

Origin

The doctrine has its roots in the historic Supreme Court case of Marbury v. Madison (1803).^[3] In that case, Chief Justice John Marshall drew a distinction between two different functions of the U.S. Secretary of State. Marshall stated that when the Secretary of State was performing a purely discretionary matter, such as advising the President on matters of policy, he was not held to any legally identifiable standards. Therefore, some of the Secretary's actions are unable to be reviewed by a court of law.

The doctrine is grounded in the federal judiciary's desire to avoid inserting itself into conflicts between branches of the federal government. It 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.

Leading authority

The leading Supreme Court case in the area of political question doctrine is Baker v. Carr (1962).^[4] In the opinion written for Baker, the Court outlined six characteristics of a political question. These include:

• 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 for a court's independent resolution without expressing a lack of respect for a coordinate branch of the government; or"
• The "impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court; 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."

Other applications

While this is a still rather unsettled doctrine, its application has been settled in a few decided areas. These areas are:

The Guarantee Clause

The Court has treated the Guarantee Clause as not a repository of "judicially manageable standards which a court could utilize independently in order to identify a State's lawful government."^[5]

Impeachment

Article I, section 2 of the Constitution states that the House "shall have the sole power of Impeachment", and Article I, section 3 provides that the "Senate shall have the sole Power to try all Impeachments."^[6] Since the Constitution placed the sole power of impeachment in two political bodies, it is qualified as a political question.

Foreign policy and war

• A court will not usually decide if a treaty has been terminated, because on that issue, "governmental action ... must be regarded as of controlling importance."^[7]
• Given the sensitive problems of holding a war to be illegal, most issues relating to the constitutionality of a war may well be nonjusticiable.

Gerrymandering

• In the case of Davis v. Bandemer (1986),^[8] the Supreme Court held that gerrymandering cases were justiciable under the equal protection clause. The precedential power of this case is still unclear; to date, the Court still struggles to determine what the standard of review in gerrymandering cases should be.^[1]
• Vieth v. Jubelirer (2004) held claims of partisan gerrymandering nonjusticiable because a discernible and manageable standard for adjudicating them had not been established or applied since Davis v. Bandemer. Justice Breyer, who dissented, wrote in his most recent book that if he could change three of his dissenting opinions (while on the Supreme Court) into a majority, this would be one of them.

Private military contractors

• In the case of Ghane v. Mid-South (Jan. 16, 2014),^[9] the Mississippi Supreme Court held that a wrongful death action against a private military company by the family of a deceased United States Navy SEAL could proceed under Mississippi law since the plaintiff's claims did not present a non-justiciable political question under Baker v. Carr (1962).^[4]

Court cases

Important cases discussing the political question doctrine:

• Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the origin of the phrase.
• Luther v. Borden, 48 U.S. 1 (1849) – Guarantee of a republican form of government is a political question to be resolved by the President and the Congress;
• Coleman v. Miller, 307 U.S. 433 (1939) – Mode of amending federal Constitution is a political question;
• Colegrove v. Green, 328 U.S. 549 (1946) – Apportionment of Congressional districts is a political question [Overruled by Baker v. Carr];
• Baker v. Carr, 369 U.S. 186 (1962) – Apportionment of state legislatures in which the court ruled that this was not a political question;
• Powell v. McCormack, 395 U.S. 486 (1969) – Congressional authority to exclude members who have met qualifications to serve is not a political question;
• Goldwater v. Carter, 444 U.S. 996 (1979) – Presidential authority to terminate treaties is a political question;
• INS v. Chadha, 462 U.S. 919 (1983) – Constitutionality of one house legislative veto is not a political question;
• Nixon v. United States, 506 U.S. 224 (1993) – Senate authority to try impeachments and impeachment are political questions.

References

1. Huhn, Wilson R. American Constitutional Law Volume 1. 2016.
2. John E. Finn (2016). "Civil Liberties and the Bill of Rights". The Teaching Company. Part I: Lecture 4: The Court and Constitutional Interpretation (see page 55 in the guidebook)
3. Marbury v. Madison, 5 U.S. 137 (1803).
4. Baker v. Carr, 369 U.S. 186, 217 (1962).
5. Baker v. Carr, 369 U.S. 186, 223 (1962).
6. United States Constitution, Article I, Section 2-3.
7. Baker v. Carr, 369 U.S. 186, 212. (1962).
8. Davis v. Bandemer, 478 U.S. 109 (1986).
9. Narjess Ghane, et al v. Mid-South Institute of Self Defense Shooting; JFS, LLC; John Fred Shaw; Donald Ross Sanders, Jr.; and Jim Cowan (Miss.2014)

Further reading

• Carter, Chad C. (Fall 2009). "Halliburton Hears a Who? Political Question Doctrine Developments in the Global War on Terror and Their Impact on Government Contingency Contracting" (PDF). Military Law Review (201 Mil. L. Rev. 86).
• O’Donnell, Michael J. (Winter 2004). "A Turn for the Worse: Foreign Relations, Corporate Human Rights Abuse, and the Courts". Boston Third World Law Journal (24 B.C. Third World L.J. 223). 24: 223.
• Shaw, Courtney (June 1, 2002). "Uncertain justice: liability of multinationals under the Alien Tort Claims Act". Stanford Law Review. Stanford Law Review, Vol. 54, No. 6. 54 (6): 1359. doi:10.2307/1229625. JSTOR 1229625.