Political question

United States federal civil procedure doctrines
Justiciability
Advisory opinions Standing Ripeness Mootness Political questions
Jurisdiction
Subject-matter Federal question Diversity Amount in controversy Supplemental Removal Class Action Fairness Act of 2005 Personal In personam In rem Quasi in rem
Federalism
Erie doctrine Abstention Anti-Injunction Act Sovereign immunity Abrogation Rooker–Feldman doctrine Adequate and independent state ground
v t

In United States constitutional law, the political question doctrine holds that 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, lies within the political, rather than the legal, realm to solve, and judges customarily refuse to address such matters. The idea of a political question 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 ultimately prohibits the issue that brings the case before the court from a resolution 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.

Origin[]

The doctrine has its roots in the historic Supreme Court case of Marbury v. Madison (1803).^[3][4] 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.^[3]

Doctrine[]

Unlike the rules of standing, ripeness, and mootness, when the political question doctrine applies, a particular question is beyond judicial competence no matter who raises it, how immediate the interests it affects, or how burning the controversy.^[4] The doctrine is grounded in separations of powers principle, as well as the federal judiciary's desire to avoid inserting itself into conflicts between branches of the federal government.^[4] 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, or simply beyond judicial capability.^[4]

The leading Supreme Court case in the area of the political question doctrine is Baker v. Carr (1962).^[5][4] In that case, the Supreme Court held that an unequal apportionment of a state legislature may have denied equal protection presented a justiciable issue.^[4] In the Baker opinion, the Court outlined six characteristics "[p]rominent on the surface of any case held to involve a political question," which include:^[5]

• "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.”

The first factor—a textually demonstrable commitment to another branch—is the classical view that the Court must decide all cases and issues before it unless, as a matter of constitutional interpretation, the Constitution itself has committed the determination of the issue to another branch of government.^[6] The second and third factors—lack of judicially discoverable standards and involvement of the judiciary in nonjudicial policy determinations—suggest a functional approach, based on practical considerations of how government ought to work.^[7] The final three factors—lack of respect for other branches, need for adherence to a political decision already made, and possibility of embarrassment—are based on the Court's prudential consideration against overexertion or aggrandizement.^[8]

Other applications[]

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

Guarantee Clause[]

The Guarantee Clause, Article IV, section 4, requires the federal government to "guarantee to every State in this Union a Republican Form of Government". The Supreme Court has declared that this Clause does not imply any set of "judicially manageable standards which a court could utilize independently in order to identify a State's lawful government".^[9]

In Luther v. Borden,^[10] the Court refused to decide which group was the legitimate government of Rhode Island, relying on this ground.^[11] Since then the Court consistently has refused to resort to the Guaranty Clause as a constitutional source for invalidating state action,^[4] such as whether it is lawful for states to adopt laws through referendums.^[12]

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".^[13] Since the Constitution placed the sole power of impeachment in two political bodies, it is qualified as a political question. As a result, neither the decision of the House to impeach nor a vote of the Senate to remove a President or any other official can be appealed to any court.^[14]

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".^[15] However, courts sometimes do rule on the issue. One example of this is native American tribes who have been officially terminated do not lose their treaty concessions without explicit text from congress that the treaty is also abrogated.

In the case of bin Ali Jaber v. United States (2017), the plaintiffs filed a lawsuit under the Torture Victim Protection Act of 1991 after a 2012 U.S. drone strike killed five civilians.^[16] The District of Columbia Court of Appeals dismissed the plaintiffs' claims on the basis that the "plaintiffs challenged the type of executive decision found nonjusticiable in El-Shifa Pharmaceutical Industries Co. v. United States (2010)." In El-Shifa, the court distinguished "between claims questioning the wisdom of military action, 'a policy choice . . . constitutionally committed' to the political branches, and 'legal issues such as whether the government had legal authority to act.'"^[17] Thus, the court held that the plaintiffs' argument required the court to make a policy decision.^[17]

Gerrymandering[]

There have been multiple cases on the justiciability of gerrymandering:

• In the case of Davis v. Bandemer (1986),^[18] the Supreme Court held that gerrymandering cases were justiciable under the Equal Protection Clause. The precedential power of this case is still unclear^{[according to whom?]}, especially considering the later case of Rucho v. Common Cause.
• 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. However, Justice Kennedy stated in his concurring opinion that judicially manageable standards for gerrymandering could be developed in future cases.^[19]
• Gill v. Whitford and Benisek v. Lamone (2017) were decided without taking a final stance on partisan gerrymandering.^[20]
• Rucho v. Common Cause and Lamone v. Benisek (2019) were decided together on June 27, 2019, where a 5-4 majority concluded partisan gerrymandering was a political question and nonjusticiable by federal courts.

Private military contractors[]

In the case of Ghane v. Mid-South (January 16, 2014),^[21] 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).^[5]

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 is 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.
• Rucho v. Common Cause, (2019) – Partisan gerrymandering is a political question.

Beyond the United States[]

The political question doctrine has also had significance beyond American constitutional law.

France[]

A type of act by the French government, the acte de gouvernement, avoids judicial review as it is too politically sensitive.^[22][23] While the scope of the concept has been reduced over time, there are still acts that the courts do not have jurisdiction over, such as matters that are deemed to be unseverable from France's diplomatic acts, like the President to launch nuclear tests or sever financial aid to Iraq.^[22][23] Other acts include the President’s decision to dissolve Parliament, to award honors, or to grant amnesty.^[23] Such actes de gouvernement need to be politically-based and also concern domains in which the courts are not competent to judge, e.g. national security and international relations.^[23]

Japan[]

The postwar constitution gave the Supreme Court of Japan the power of judicial review, and the court developed its own political question doctrine (Japanese: 統治行為; tōchikōi).^[24] The Supreme Court of Japan was in part trying to avoid deciding the merits of cases under Article 9 of the post-war pacifist constitution, which renounces war and the threat or use of force.^[25] Issues arising under Art. 9 include the legitimacy of Japan’s Self-Defense Force, the U.S.-Japan Security Treaty, and the stationing of U.S. Forces in Japan.^[24]

The Sunagawa case is considered the leading precedent on the political question doctrine in Japan.^[24] In 1957, in what is later known to be the Sunagawa incident, demonstrators entered a then U.S. military base in the Tokyo suburb of Sunagawa.^[26] By their entry into the base, demonstrators violated a special Japanese criminal law based on the U.S.-Japan Security Treaty.^[26] A Tokyo District Court found that the U.S. military's presence in Japan were unconstitutional under Art. 9 of the Constitution and acquitted the defendants.^[26]

The Supreme Court overturned the district court in a fast-track appeal, implicitly developing the political question doctrine in the ruling.^[27][28] The Court found it inappropriate for the judiciary to judge the constitutionality of highly political matters like the U.S.-Japan Security Treaty, unless they expressly violate the Constitution.^[25] On the Security Treaty, the Court saw “an extremely high degree of political consideration" and "there is a certain element of incompatibility in the process of judicial determination of its constitutionality by a court of law which has as its mission the exercise of the purely judicial function.”^[29] It therefore found that the question should be resolved by the Cabinet, the Diet, and ultimately by the people through elections.^[29][24] The presence of U.S. forces, moreover, did not violate Article 9 of the pacifist Constitution, because it did not involve forces under Japanese command.^[29]

Thereafter, the political question doctrine became a barrier for challenges under Art. 9.^[30][31][32] Under the clear mistake rule developed by the Court, it defers to the political branches on Art. 9 issues so long as the act is “not obviously unconstitutional and void.”^[29][24]

Other notable cases on the political question doctrine in Japan include the Tomabechi case, which concerned whether the dissolution of the Diet was valid.^[33] In the Tomabechi case, the Court also decided against judicial review by implicitly invoking the political question doctrine, citing the separation of powers as justification.^[24] In addition, the Court announced that in political question cases not related to Art. 9, the clear mistake rule does not apply and judicial review is categorically prohibited.^[24]

International Court of Justice, and the European Court of Human Rights[]

Before international courts, the International Court of Justice has dealt with the doctrine in its advisory function, and the European Court of Human Rights has engaged with the doctrine through the margin of appreciation.^[34]

Court of Justice of the European Union[]

Within European Union law, the Court of Justice of the European Union has never addressed the political question doctrine in its jurisprudence explicitly, yet it has been argued that there are traces of the doctrine present in its rulings.^[35]

References[]

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): 1359–1386. doi:10.2307/1229625. JSTOR 1229625. Archived from the original on May 31, 2006.
• Butler, Graham (2018). "In Search of the Political Question Doctrine in EU Law". Legal Issues of Economic Integration. 45 (4): 329–354.
• Piazolo, Michael: Verfassungsgerichtsbarkeit und politische Fragen, die Political Question Doktrin im Verfahren vor dem Bundesverfassungsgericht und dem Supreme Court der USA. Munich 1994 (german text)