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Political question doctrine

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Thepolitical question doctrine refers to disputes that courts determine are best resolved by the politically accountable branches of government: the president and Congress. The traditional expression of the doctrine refers to cases that courts will not resolve because they involve questions about the judgment of actors in the executive or legislative branches and not the authority of those actors. For example, cases involving foreign policy or impeachment often raise political question concerns. Drawing lines between regular cases and political questions has been difficult over the course of American history because of differing opinions about theseparation of powers among the branches of the federal government.[1][2]

Theory and practice

According to Jared P. Cole, writing for theCongressional Research Service, the foundation of the political question doctrine is disputed. One theory argues that theConstitution of the United States sets the bounds of the doctrine when it gives responsibility to resolve certain questions to Congress or the president. Another theory states that prudential reasons allow courts to decline to adjudicate certain questions. Cole says that the U.S. Supreme Court has relied on both constitutional and prudential factors in various cases that touch on the political question doctrine.[1]

A note from theHarvard Law Review says that the political question doctrine combined with early notions ofjudicial review to solidify the place of the courts in the American constitutional system:[3]

“Judges had to respect the Constitution above all else, and therefore could not sanction its violation by Congress or the President. But they could not allow private citizens to litigate against constitutionally delegated political discretion either. Accordingly, political question doctrine as understood in the early republic sought to identify cases that implicitly or explicitly challenged the judgment, rather than the authority, of federal officials.[4]”

Origin of the doctrine

Marbury v. Madison

One of the earliest expressions of the political question doctrine is the 1803U.S. Supreme Court caseMarbury et al. v. Madison. In that case, Chief JusticeJohn Marshall argued that the courts could not review decisions made by the president in areas where theUnited States Constitution granted discretion to the executive branch and where individual rights were not implicated.[5][1][3]

“The conclusion from this reasoning is that, where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. [...]


The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.[5][4]

”

According to legislative attorney Jared P. Cole, the political question doctrine expanded afterMarbury. In the 1849 caseLuther v. Borden, the U.S. Supreme Court ruled that Congress, not the courts, must decide which entity was the lawful state government of Rhode Island. That ruling meant that discretion left either to the executive or to the legislative branch could be a political question that courts would not decide. TheHarvard Law Review suggests thatLuther established a prudential form of the political question doctrine based on the U.S. Supreme Court's inability to carry out constitutional duties committed to the United States.[1][3]

Baker v. Carr

In 1962, the U.S. Supreme Court articulated six factors that could trigger the political question doctrine in the case ofBaker v. Carr.[1][6]

“Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; [4] or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.


Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of "political questions," not one of 'political cases.' The courts cannot reject as "no law suit" abona fide controversy as to whether some action denominated 'political' exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.[4]

”

TheBaker Court also held that issues related to foreign policy could raise political questions. A note from theHarvard Law Review states thatBaker was the first attempt to create a comprehensive rule governing the political question doctrine even though the doctrine had posed problems since the very early republic.[1][6][3]

In the context of administrative law

A note from theHarvard Law Review connects the political question doctrine withcommon law notions ofsovereign immunity, which is the idea that governments can choose whether to submit to prosecutions or other legal actions. That connection attempts to show how the political question doctrine extended into theadministrative state starting with the caseMurray's Lessee v. Hoboken Land & Improvement Co. in 1856. In that case, the U.S. Supreme Court held that there were some cases related to public rights that Congress could keep courts from considering:[3][7]

“To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty, nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination. At the same time, there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper. Equitable claims to land by the inhabitants of ceded territories form a striking instance of such a class of cases; and as it depends upon the will of Congress whether a remedy in the courts shall be allowed at all, in such cases, they may regulate it and prescribe such rules of determination as they may think just and needful. Thus, it has been repeatedly decided in this class of cases that, upon their trial, the acts of executive officers, done under the authority of Congress, were conclusive either upon particular facts involved in the inquiry or upon the whole title.[7][4]”

TheHarvard Law Review note argues that the creation of the public rights doctrine inMurray's Lessee applied the political question doctrine to the administrative state because the case involved the ramifications of the federal government dealing with an embezzling customs agent. The note claims that the political question doctrine is a kind of limiting principle for judicial review:[3]

“That limit, as explained here, results from the sovereign people’s grants of agency to the political branches through the Constitution. Just as with public rights doctrine, agents of the sovereign enjoy the immunity of the sovereign. To hold otherwise would permit private litigants to subvert popular government one case at a time. Indeed, a core feature of popular government is its power to grant remedies through political processes above and beyond the reach of the courts. In that tradition political question doctrine was forged, and in that tradition it remains.[4]”

See also

Footnotes

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