Political question
Encyclopedia
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability
Justiciability
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual...

, 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.

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 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 Congress or the President is a political question, which judges refuse to address.

Origin

The doctrine has its roots in the historic Supreme Court case of Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

 (1803). In that case, Chief Justice John Marshall drew a distinction between two different functions of the Secretary of State. Marshall stated that when the Secretary of State was performing a purely discretional 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
Baker v. Carr
Baker v. Carr, , was a landmark United States Supreme Court case that retreated from the Court's political question doctrine, deciding that redistricting issues present justiciable questions, thus enabling federal courts to intervene in and to decide reapportionment cases...

 (1962). In the opinion written for Baker, the Court outlined six elements of the political question doctrine. These include:
  • A "textually demonstrable constitutional commitment of the issue to a coordinate political branch."
  • A "lack of judicially discoverable standards."
  • The "impossibility for a court independent resolution without expressing a lack of respect for a coordinate branch of the government."
  • The "impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court."
  • An "unusual need for unquestioning adherence to a political decision."
  • 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:

Foreign Affairs and the War Making Power

  • 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."
  • Given the sensitive problems of holding a war to be illegal, most issues relating to the constitutionality of a war may well be nonjusticiable.

Amendments to the Constitution

  • Congress, possessing exclusive power over the amending process, cannot be bound by and is under no duty to accept the pronouncements upon that exclusive power by this Court."

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."

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."
  • Because the Constitution placed the sole power of impeachment in two political bodies, it is qualified as a political question.

Political gerrymandering

  • In the case of Davis v. Bandemer (1986), the Supreme Court held that political 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 political gerrymandering cases should be.
  • 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.

Important cases discussing the political question doctrine:
  • Marbury v. Madison
    Marbury v. Madison
    Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

    , , the origin of the phrase.
  • Luther v. Borden
    Luther v. Borden
    Luther v. Borden, 48 U.S. 1 , was a case in which the Supreme Court of the United States established the political question doctrine in controversies arising under the Guarantee Clause of Article Four of the United States Constitution Luther v. Borden, 48 U.S. 1 (1849), was a case in which the...

    , – Guarantee of a republican form of government is a political question to be resolved by the President and the Congress;
  • Coleman v. Miller
    Coleman v. Miller
    Coleman v. Miller, is a landmark decision of the United States Supreme Court which clarified that if the Congress of the United States—when proposing for ratification an amendment to the United States Constitution pursuant to Article V thereof—chooses not to specify a deadline within...

    , – Mode of amending federal Constitution is a political question;
  • Colegrove v. Green
    Colegrove v. Green
    Colegrove v. Green, 328 U.S. 549 , was a United States Supreme Court case. Writing for a 4-3 plurality, Justice Felix Frankfurter held that the federal judiciary had no power to interfere with issues regarding apportionment of state legislatures. The Court held that Article I, section IV of the U.S...

    , – Apportionment of Congressional districts is a political question [Overruled by Baker v. Carr];
  • Baker v. Carr
    Baker v. Carr
    Baker v. Carr, , was a landmark United States Supreme Court case that retreated from the Court's political question doctrine, deciding that redistricting issues present justiciable questions, thus enabling federal courts to intervene in and to decide reapportionment cases...

    , – Apportionment of state legislatures in which the court ruled that this was not a political question;
  • Powell v. McCormack
    Powell v. McCormack
    Powell v. McCormack, was a United States Supreme Court case decided in 1969. It answered the question of whether Congress has the authority to exclude from being sworn in and enrolled upon its rolls a person who has been duly elected or appointed by the people or the executive authority of his/her...

    , – Congressional authority to exclude members who have met qualifications to serve is not a political question;
  • Goldwater v. Carter
    Goldwater v. Carter
    Goldwater v. Carter, 444 U.S. 996 , was a United States Supreme Court case which was the result of a lawsuit filed by Senator Barry Goldwater and other members of the United States Congress challenging the right of President Jimmy Carter to unilaterally nullify the Sino-American Mutual Defense...

    , – Presidential authority to terminate treaties is a political question;
  • INS v. Chadha, – Constitutionality of one house legislative veto is not a political question;
  • Nixon v. United States
    Nixon v. United States
    Nixon v. United States, 506 U.S. 224 , was a United States Supreme Court decision that determined that the question of whether the Senate had properly "tried" an impeachment was a political question, and could not be resolved in the Courts.-Facts:...

    , – Senate authority to try impeachments and impeachment are political questions.

External links

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