ArtIII.S2.C1.1.8.2 Early Political Question 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.

In the first decade after ratification of the Constitution, the Court in Ware v. Hylton1 refused to pass on the question whether a treaty had been broken, and in Martin v. Mott, 2 the Court held that the President acting under congressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But the roots of the doctrine are most clearly seen in Marbury v. Madison, 3 where Chief Justice Marshall stated: 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.4

In Luther v. Borden, 5 however, the Court made clear that the doctrine went beyond considerations of interference with executive functions. This case, arising from the Dorr Rebellion (a period of political unrest in Rhode Island), considered the claims of two competing factions vying to be declared the lawful government of Rhode Island. 6 Chief Justice Taney, for the Court, began by saying that the answer was primarily a matter of state law that had been decided in favor of one faction by the state courts. 7 Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the clause empowering the United States to guarantee to every state a republican form of government, 8 and this clause committed the determination of that issue to Congress.

Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.9 Here, the contest had not proceeded to a point where Congress had made a decision, [y]et the right to decide is placed there, and not in the courts.10

Moreover, in effectuating the provision in the same clause that the United States should protect states against domestic violence, Congress had vested discretion in the President to use troops to protect a state government upon the application of the legislature or the governor. Before he could act upon the application of a legislature or a governor, the President must determine what body of men constitute the legislature, and who is the governor . . . . No court could review the President's exercise of discretion in this respect; no court could recognize as legitimate a group vying against the group recognized by the President as the lawful government. 11 Although the President had not actually called out the militia in Rhode Island, he had pledged support to one of the competing governments, and this pledge of military assistance if it were needed had in fact led to the capitulation of the other faction, thus making an effectual and authoritative determination not reviewable by the Court. 12

The Doctrine Before Baker v. Carr

Over the years, the political question doctrine has been applied to preclude adjudication of a variety of other issues. In particular, prior to Baker v. Carr, 13 cases challenging the distribution of political power through apportionment and districting, 14 weighted voting, 15 and restrictions on political action 16 were held to present nonjusticiable political questions. Certain factors appear more or less consistently through most of the cases decided before Baker, and it is perhaps best to indicate the cases and issues deemed political before attempting to isolate these factors.

1. Republican Form of Government. By far the most consistent application of the doctrine has been in cases in which litigants asserted claims under the republican form of government clause. 17 The attacks were generally either on the government of the state itself 18 or involved a challenge regarding the manner in which it had acted. 19 There have, however, been cases involving this clause in which the Court has reached the merits. 20

2. Recognition of Foreign States. Although there is language in the cases that would, if applied, serve to make all cases touching on foreign affairs and foreign policy political questions, 21 whether the courts can adjudicate a dispute in this area has often depended on the context in which it arises. Thus, the determination by the President whether to recognize the government of a foreign state 22 or who is the de jure or de facto ruler of a foreign state 23 is conclusive on the courts. In the absence of a definitive executive action, however, the courts will review the record to determine whether the United States has accorded a sufficient degree of recognition to allow the courts to take judicial notice of the existence of the state. 24 Moreover, the courts have often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized. 25

3. Treaties. Similarly, the Court, when dealing with treaties and the treaty power, has treated as political questions whether the foreign party had constitutional authority to assume a particular obligation 26 and whether a treaty has lapsed because of the foreign state's loss of independence 27 or because of changes in the territorial sovereignty of the foreign state. 28 On the other hand, the Court will not only interpret the domestic effects of treaties, 29 but it will at times interpret the effects bearing on international matters. 30 The Court has generally deferred to the President and Congress with regard to the existence of a state of war and the dates of the beginning and ending and of states of belligerency between foreign powers, but the deference has sometimes been forced. 31

4. Enactment or Ratification of Laws. Ordinarily, the Court will not look behind the fact of certification as to whether the standards requisite for the enactment of legislation 32 or ratification of a constitutional amendment 33 have in fact been met, although it will interpret the Constitution to determine what the basic standards are. 34 Further, the Court will decide certain questions if the political branches are in disagreement. 35

From this limited review of the principal areas in which the political question doctrine seemed most established, it is possible to extract some factors that seemingly convinced the courts that the issues presented went beyond the judicial responsibility. These factors, stated baldly, would appear to be the lack of requisite information and the difficulty of obtaining it, 36 the necessity for uniformity of decision and deference to the wider responsibilities of the political departments, 37 and the lack of adequate standards to resolve a dispute. 38 But present in all the political cases was (and is) the most important factor: a prudential attitude about the exercise of judicial review, which emphasizes that courts should be wary of deciding on the merits any issue in which claims of principle as to the issue and of expediency as to the power and prestige of courts are in sharp conflict. The political question doctrine was (and is) thus a way of avoiding a principled decision damaging to the Court or an expedient decision damaging to the principle. 39

Footnotes

  1.  Jump to essay-13 U.S. (3 Dall.) 199 (1796).
  2.  Jump to essay-225 U.S. (12 Wheat.) 19 (1827).
  3.  Jump to essay-35 U.S. (1 Cr.) 137 (1803).
  4.  Jump to essay-45 U.S. (1 Cr.) at 170. In Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 516 (1840), the Court, refusing an effort by mandamus to compel the Secretary of the Navy to pay a pension, said: The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them. It therefore follows that mandamus will lie against an executive official only to compel the performance of a ministerial duty, which admits of no discretion, and may not be invoked to control executive or political duties which admit of discretion. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838).
  5.  Jump to essay-548 U.S. (7 How.) 1 (1849).
  6.  Jump to essay-6Cf. Baker v. Carr, 369 U.S. 186, 218-22 (1962); id. at 292-97 (Justice Frankfurter dissenting).
  7.  Jump to essay-7Luther, 48 U.S. (7 How.) at 40.
  8.  Jump to essay-848 U.S. at 42 (citing Article IV, § 4).
  9.  Jump to essay-9 48 U.S. at 42 .
  10.  Jump to essay-10Id.
  11.  Jump to essay-1148 U.S. at 43.
  12.  Jump to essay-1248 U.S. at 44.
  13.  Jump to essay-13369 U.S. 186 (1962).
  14.  Jump to essay-14Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947).
  15.  Jump to essay-15South v. Peters, 339 U.S. 276 (1950) (county unit system for election of statewide officers with vote heavily weighted in favor of rural, lightly populated counties).
  16.  Jump to essay-16MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating petitions must be spread among counties of unequal population).
  17.  Jump to essay-17Article IV, § 4.
  18.  Jump to essay-18As it was on the established government of Rhode Island in Luther v. Borden, 48 U.S. (7 How.) 1 (1849). See also Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Taylor v. Beckham, 178 U.S. 548 (1900).
  19.  Jump to essay-19Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912) (challenging tax initiative); Kiernan v. City of Portland, 223 U.S. 151 (1912) (attacks on initiative and referendum); Marshall v. Dye, 231 U.S. 250 (1913) (state constitutional amendment procedure); O’Neill v. Leamer, 239 U.S. 244 (1915) (delegation to court to form drainage districts); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (submission of legislation to referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917) (workmen's compensation); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 (1930) (concurrence of all but one justice of state high court required to invalidate statute); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937) (delegation of legislative powers).
  20.  Jump to essay-20All the cases, however, predate the application of the doctrine in Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912). See Attorney General of the State of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905) (legislative creation and alteration of school districts compatible with a republican form of government); Forsyth v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to court to determine municipal boundaries does not infringe republican form of government); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175-176 (1874) (denial of suffrage to women no violation of republican form of government).
  21.  Jump to essay-21Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948).
  22.  Jump to essay-22United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852).
  23.  Jump to essay-23Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918). See Ex parte Hitz, 111 U.S. 766 (1884).
  24.  Jump to essay-24United States v. The Three Friends, 166 U.S. 1 (1897); In re Baiz, 135 U.S. 403 (1890). Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
  25.  Jump to essay-25United States v. Reynes, 50 U.S. (9 How.) 127 (1850); Garcia v. Lee, 37 U.S. (12 Pet.) 511 (1838); Keene v. McDonough, 33 U.S. (8 Pet.) 308 (1834). See also Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839); Underhill v. Hernandez, 168 U.S. 250 (1897). But see United States v. Belmont, 301 U.S. 324 (1937). On the act of state doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), with First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). See also First National City Bank v. Banco Para el Comercio de Cuba, 462 U.S. 611 (1983); W.S. Kirkpatrick & Co. v. Envtl. Tectronics Corp., 493 U.S. 400 (1990).
  26.  Jump to essay-26Doe v. Braden, 57 U.S. (16 How.) 635 (1853).
  27.  Jump to essay-27Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947).
  28.  Jump to essay-28Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). On the effect of a violation by a foreign state on the continuing effectiveness of the treaty, see Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913).
  29.  Jump to essay-29Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Cf. Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889) (conflict of treaty with federal law). On the modern formulation, see Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221, 229-230 (1986).
  30.  Jump to essay-30Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407 (1886).
  31.  Jump to essay-31Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948); Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924); Ludecke v. Watkins, 335 U.S. 160 (1948); Lee v. Madigan, 358 U.S. 228 (1959); The Divina Pastora, 17 U.S. (4 Wheat.) 52 (1819). The cases involving the status of Indian tribes as foreign states usually but not always have presented political questions. The Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Sandoval, 231 U.S. 28 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
  32.  Jump to essay-32Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547 (1896); cf. Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868). See, for the modern formulation, United States v. Munoz-Flores, 495 U.S. 385 (1990).
  33.  Jump to essay-33Coleman v. Miller, 307 U.S. 433 (1939) (Congress’s discretion to determine what passage of time will cause an amendment to lapse, and effect of previous rejection by legislature).
  34.  Jump to essay-34Missouri Pac. Ry. v. Kansas, 248 U.S. 276 (1919); Rainey v. United States, 232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220 U.S. 107 (1911); Twin City National Bank v. Nebeker, 167 U.S. 196 (1897); Lyons v. Woods, 153 U.S. 649 (1894); United States v. Ballin, 144 U.S. 1 (1892) (statutes); United States v. Sprague, 282 U.S. 716 (1931); Leser v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368 (1921); Hawke v. Smith (No. 1), 253 U.S. 221 (1920); National Prohibition Cases, 253 U.S. 350 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) (constitutional amendments).
  35.  Jump to essay-35Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S. 583 (1938).
  36.  Jump to essay-36See, e.g., Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948); Coleman v. Miller, 307 U.S. 433, 453, (1939).
  37.  Jump to essay-37See, e.g., Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839). Similar considerations underlay the opinion in Luther v. Borden, 48 U.S. (7 How.) 1 (1849), in which Chief Justice Taney wondered how a court decision in favor of one faction would be received with Congress seating the representatives of the other faction and the President supporting that faction with military force.
  38.  Jump to essay-38Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of the Court); id. at 268, 287, 295 (Justice Frankfurter dissenting)
  39.  Jump to essay-39For a statement of the prudential view, see generally A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962), but see 23-28, 69-71, 183-198. See also Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frankfurter dissenting.) The opposing view, which has been called the classicist view, is that courts are duty bound to decide all cases properly before them. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). See also H. Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 11-15 (1961).