parent nodes: Article III | Banco Nacional de Cuba v Sabbatino | Campbell v Clinton | Congressional war power | Constitution | customary international law | Japan Whaling Assn v American Cetacean Society | judicial foreign affairs deference | judicial power | judicial review of foreign relations | justiciability | Marbury v Madison | political question | separation of powers | Tel-Oren v Libyan Arab Republic | treaty termination | Vieth v Jubelier | War Powers Resolution
political question
An Article III court may dismiss an issue as nonjusticiable if it presents a "political question" which is not capable of judicial review. There are not political cases, but only political questions. [Baker v Carr] The doctrine can be described in both positive terms of the judiciary's ability to hear such a question, see [Baker v Carr] (allowing a challenge to a state apportionment scheme in part because the Court had an established line of doctrine on the relevant issues); [Powell v McCormack] (allowing a challenge to the House's refusal to seat an elected member where the Court would merely have to "interpret the Constitution"), or in negative terms of the Court's unwillingness to intrude on the methods of other branches of government. See [Goldwater v Carter] (refusing challenge to unilateral Presidential termination of a treaty).
The doctrine originated as dicta in Marbury v Madison, wherein Marshall mentioned that courts should not intervene where another officer has discretion how to act.
Note the general similiarity between the doctrine and the standing doctrine, both of which require that "the litigant who would challenge official action must claim infringement of an interest particular and personal to himself, as distinguished from a cause of dissatisfaction with the general frame and functioning of government -- a claim that the political institutions are awry." [Baker v Carr] (Frankfurter dissenting)
For a nonjusticiable political question to exist, courts consider (1) "the appropriateness under our system of government of attributing finality to the action of the political departments" and (2) "the lack of satisfactory criteria for a judicial determination". Factors implying the presence of a "political question" include:
- a "textually demonstrable constitutional commitment of the issue to a coordinate political department" [Baker v Carr]
- the "impossibility" of deciding a case without a nonjudicial "policy determination" [Baker v Carr]
- an "unusual need for unquestioning adherence to a political decision already made" [Baker v Carr]
- the "difficulty of fashioning relief" [Nixon v United States]
- whether a workable substantive standard can or has been made Vieth v Jubelier; [LULAC v Perry]
- whether the case would lead to "multifarious pronouncements by various departments;" cf. [Powell v McCormack] (holding that no risk existed of "multifarious pronouncements" in hearing a challenge to the House's refusal to seat an elected member, given the court's power under the Supremacy Clause and Marbury v Madison to interpret the question"); [Baker v Carr] (describing "embarassment" from intrabranch conflict as grounds for political question status)
- whether the Constitution is silent on an issue, and the need may exist for multiple approaches to an issue depending on circumstances [Goldwater v Carter] (rejecting challenge to unilateral executive termination); see also [Nixon v United States] (rejecting challenge to Senate impeachment methods where "try" in the [Impeachment Clause] had no precise meaning)
- a high cost of intervening [Goldwater v Carter]
- whether federal review would intrude on the ability of a state government to organize itself as it wishes [Bush v Gore] (Ginsburg dissenting)
- whether another institution would more effectively express the "people's will" [Bush v Gore] (Breyer dissenting)
Factors against the existence of a political question include:- a concern about political self-entrenchment [Baker v Carr]; [Davis v Bandmeier]; [Powell v McCormack]; [Nixon v United States]
-whether a suit "require(s) no more than an interpretation of the Constitution" [Powell v McCormack]
-whether an "antecedent question whether a particular branch has been constitutionally designated as the repository of political decisionmaking power" [Goldwater v Carter] (Brennan dissenting)
-whether a constitutional violation has in fact occurred. Compare [Nixon v United States] (finding political question in suit challenging Senate impeachment procedures where the Court found no constitutional problem with the Senate's methods) with [Baker v Carr] (finding no political question where state apportionment scheme was held on the merits to violate the Equal Protection Clause
- whether judges are in fact applying substantive standards to a question Vieth v Jubelier (Souter dissenting)
- whether the action of another part of government is so outside its discretion as to implicate important federal constitutional standards [Bush v Gore] (Rehnquist concurring) (arguing that Article II leaves elections to legislatures, so that the Court should intervene if a state court overly interferes with the state legislature's conduct of presidential elections)
- whether the grant of power to a nonjudicial branch together with republican traditions implies the availability of judicial review [Bush v Gore] (Stevens dissenting) (arguing that language in Article II granting state legislatures power to regulate presidential elections implied the possibility of state judicial review, so that the Court should not interfere)
The [Guaranty Clause] of Article IV is always considered nonjusticiable; however, the clause is nonjusticiable because it inherently contains the qualities that make it unsuitable for judicial review. [Baker v Carr] (Brennan)
Redistricting cases
The Court held that gerrymandering claims were justiciable in [Davis v Bandemer]. However, in Vieth v Jubelier, Justice Scalia, writing for a plurality of the Court, rejected a political gerrymandering claim on the ground that no workable standard had in fact been implemented since Davis was decided. But see Vieth v Jubelier (Kennedy concurring) (arguing that a workable standard could be found, and that the Court should not foreclose the possibility that gerrymandering claims might in fact be justiciable) The Court may have taken a passive approach in which it requires plaintiffs or amici to provide a workable standard in order to state a claim upon relief can be granted. See [LULAC v Perry] (dismissing political gerrymandering suit for failure to state a claim where plaintiffs or amici did not propose satisfactorily workable standards upon which the claim could be heard).
Cases
Cases finding a political question
[Nixon v United States] (finding that the method by which the Senate tried an impeached federal judge presented a political question, and that the method used was constitutional, given a "textual commitment" to the Senate to try impeachments, a lack of "finality" in judicial review, and the "difficulty of fashioning relief" for the judge)
[Goldwater v Carter] (holding that the President's termination of a treaty without Senate consent presented a political question, given the Constitution's silence on the issue, the fact that "different termination procedures may be appropriate for different treaties"
Vieth v Jubelier (holding that political gerrymandering claims are a nonjusticiable political question, on the grounds that proposed standards for the claims are conflicting and overly given to vague notions of 'fairness,' which cannot provide constraint on courts' discretion, guidance to legislatures on how to act, and public acceptance of judicial decisions, and arguing that Kennedy's concurring vote is a vote against justiciability; see also Kennedy concurring in judgment, arguing that the Court's opinion does not fully prove the negative fact that no workable standard exists, that new standards might emerge, and that the Court should not "prematurely abandon() the field;" see also Stevens dissenting, arguing that the Court has actually ruled that the judiciary cannot determine when legislatures have acted impartially, and that judicial standards are available; see also Souter dissenting, arguing that judges are already using proposed standards in practice, and that they do not have "subjectivity inconsistent with the judicial function")
Cases finding no political question
[Baker v Carr] (holding that an Equal Protection Clause challenge to a state reapportionment statute did not present a political question, given the prior existence of federal Equal Protection Clause law, the lack of any decision by a coordinate branch of government, and no risk of "embarassment")
[Davis v Bandmeier] (holding that a challenge to state gerrymandering practices did not present a political question, given the lack of decision by a coordinate branch and the availability of standards under [Baker v Carr], as long as the plaintiff could show a "consistent() degradation()" of the "political process as a whole")
[Powell v McCormack] (holding that a suit challening the House's choice not to seat a duly elected member did not present a "political question" given that the suit would "require no more than an interpretation of the Constitution," did not involve a "lack of respect" for a coordinate branch, and quoting Marbury v Madison in arguing that the case would not lead to conflicting actions between branches, given the Court's power under the Supremacy Clause to interpret the Constitution)
[Bush v Gore] (holding that equal protection challenge to state recount scheme was justiciable, on grounds that "(w)hen a court orders a statewide (voting) remedy, there must be at least some assurance that te rudimentary requirements of equal treatment and fundamental fairness are satisfied," and emphasizing the importance of equal protection to individual voters once a state grants the right to vote; see also Rehnquist concurring, arguing that Article II, which allows states to run elections "as the Legislature thereof may direct," requires the Court to hold that Florida state courts misinterpreted state law so as to violate Article I, given that "a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question," and that state law requiring "appropriate" judicial relief required state courts to settle challenges before a federal statutory state harbor for counting electoral votes; see also Stevens dissenting, arguing that Article II, which allows the states to regulate elections "in such Manner as the Legislature thereof may direct," contemplates state judicial review, that Article II does not free state courts of their state constitutional requirements, and the Court had never examined states' substantive standards for whether a vote had been cast; see also Ginsburg dissenting, arguing that previous cases where the Court had independently applied state law required "historical context" lacking here, that "a State may organize itself as it sees fit," that Article IV implies that states can have their judiciary interpret their legislative acts, and Article II does not require otherwise; see also Breyer dissenting, arguing that the legislative history of the safe-harbor provision intended for presidential elections to be solved by Congress, not the courts, and that Congress expresses the "people's will" more effectively)
[LULAC v Perry] (rejecting political gerrymandering claim as nonjusticiable where plaintiff and amici had failed to show a workable test)