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Political Questions

It may be that there will be a case assuredly within the Court’s jurisdiction presented by parties with standing in which adverseness and ripeness will exist, a case in other words presenting all the qualifications we have considered making it a justiciable controversy, which the Court will nonetheless refuse to adjudicate. The “label” for such a case is that it presents a “political question.” Although the Court has referred to the political question doctrine as “one of the rules basic of the federal system and this Court’s appropriate place within that structure,”510 a commentator has remarked that “[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms known to the law. The origin, scope, and purpose of the concept have eluded all attempts at precise statements.”511 That the concept of political questions may be “more amenable to description by infinite[p.688]itemization than by generalization”512 is generally true, although the Court’s development of rationale in Baker v. Carr513 has changed this fact radically, but the doctrine may be approached in two ways, by itemization of the kinds of questions that have been labeled political and by isolation of the factors that have led to the labeling.

Origins and Development.—In Marbury v. Madison,514 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.”515

But the doctrine was asserted even earlier as the Court in Ware v. Hylton516 refused to pass on the question whether a treaty had been broken. And in Martin v. Mott,517 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 it was in Luther v. Borden518 that the concept was first enunciated as a doctrine separate from considerations of interference with executive functions. This case presented the question of the claims of two competing factions to be the only lawful government of Rhode Island during a period of unrest in 1842.519 Chief Justice Taney 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.520

Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the[p.689]clause empowering the United States to guarantee to every State a republican form of government,521 and this clause committed determination of the issue to the political branches of the Federal Government. “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 neccessarily 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.”522 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.”523

Moreover, in effectuating the provision in the same clause that the United States should protect them 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.524 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.525


510 Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); cf. Baker v. Carr, 369 U.S. 186, 278 (1962) (Justice Frankfurter dissenting). The most successful effort at conceptualization of the doctrine is Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 L.J.517 (1966). See Hart & Wechsler, op. cit., n. 250, 270–294.
511 Frank, Political Questions, in E. Cahn (ed.), Supreme Court and Supreme Law (Bloomington: 1954), 36.
512 Ibid.
513 Baker v. Carr, 369 U.S. 186, 208–232 (1962).
514 1 Cr. (5 U.S.) 137, 170 (1803).
515 In Decatur v. Paulding, 14 Pet. (39 U.S.) 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, 6 Wall. (73 U.S.) 50 (1867); Mississippi v. Johnson, 4 Wall. (71 U.S.) 475 (1867); Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838).
516 3 Dall. (3 U.S.) 199 (1796).
517 12 Wheat. (25 U.S.) 19 (1827).
518 7 How. (48 U.S.) 1 (1849).
519 Cf. Baker v. Carr, 369 U.S. 186, 218–222 (1962); id., 292– 297 (Justice Frankfurter dissenting).
520 Luther v. Borden, 7 How. (48 U.S.) 1, 40 (1849).
521 Id., 42 (citing Article IV, Sec. 4).
522 Ibid.
523 Ibid.
524 Id., 43.
525 Id., 44.
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