Congressional Governance as a Political Question

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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.

The Supreme Court has also applied the political question doctrine to cases involving the internal governance of the Congress, though recent decisions have construed the doctrine narrowly in this context. In the pre-Baker case Marshall Field & Co. v. Clark,1 plaintiffs challenging a tariff law contended that the law was invalid because a section of the bill passed by Congress was omitted from the final version of the law signed by the President.2 The Court concluded that it could not adjudicate this issue; because of the “respect due to a co-ordinate branch of the government,” the Court had to take as “conclusive” the fact that the act was attested by the signatures of the presiding officers of the houses of Congress and approved by the President.3 Baker explained that Clark signified the need for “respect” to coequal branches and for “finality and certainty” about statutes.4 A few cases since Baker have added color to the concept of “respect” in this context.

For example, in Powell v. McCormack,5 an individual elected to the House of Representatives challenged a House resolution excluding him from his seat in Congress. Although the Member-elect met the age and citizenship requirements in Article I, Section 2, the House found that he had misrepresented travel expenses and made illegal salary payments to his wife.6 The defendants—Members and officers of the House—argued that the text of the Constitution, specifically Article I, Section 5, gave Congress exclusive authority to judge the qualifications of its own Members, so Congress could determine that the Member was unqualified.7 The Supreme Court held that the case could go forward and that the Member-elect was entitled to relief.8 On the question of justiciability, the Court explained that, despite the text the defendants cited from Article I, Section 5, there was no “textually demonstrable commitment” of this constitutional question to another branch.9 At most, the Constitution gave Congress the power to judge the “qualifications expressly set forth in the Constitution,” not the power to set new qualifications.10 Nor did the Court conclude that “lack of the respect due co-ordinate branches” barred hearing the case, notwithstanding that it was interpreting the Constitution “in a manner at variance with the construction given the document by another branch.” 11 In the view of the Powell Court, constitutional conflicts with other branches were inevitable under the constitutional system and were no excuse for avoiding a case where there existed “judicially manageable standards” sufficient to judge the question.12

Similar principles animated the Court’s decision in INS v. Chadha.13 There, the Court considered the constitutionality of a provision of the Immigration and Nationality Act authorizing one House of Congress, by resolution, to invalidate a decision of the Executive Branch to suspend the deportation of an alien.14 The United States argued that Chadha presented a nonjusticiable political question, because Article I granted Congress the power to “establish a uniform Rule of Naturalization,” providing it with unreviewable authority over the regulation of aliens.15 As in Powell, the Court rejected the application of the political question doctrine.16 The Court, in an opinion by Chief Justice Warren Burger, observed that what was at issue was not Congress’s plenary authority over aliens, but rather whether it had chosen “a constitutionally permissible means of implementing that power.” 17 Because that latter question was squarely within the Judiciary’s purview, the political question doctrine did not bar consideration of the case, regardless of the fact that judicial review limited Congress’s authority as a practical matter.18

Respect for the coordinate branches also did not prevent the Court from reaching the merits of the dispute in United States v. Munoz-Flores,19 which concerned whether a federal statute violated the Origination Clause of the Constitution, a provision that requires revenue-raising legislation to originate in the House of Representatives.20 In that case, Munoz-Flores was ordered to pay a special assessment under the Victims of Crime Act of 1984 and challenged the statute as unconstitutional because the bill was “for raising revenue” and did not originate in the House of Representatives.21 The Government objected that hearing the case expressed a “lack of respect” for the House: in the Government’s view, the House made an unreviewable determination that the Act was not for the purpose of raising revenue when it passed the legislation.22 The Court rejected that argument, holding that Munoz-Flores’s challenge was no different than any other constitutional challenge to a law involving separation of powers, and judicial review did not evidence a “lack of respect.” 23

1: 143 U.S. 649 (1892).
2: Id. at 668–69, 672.
3: Id. at 673. Cf. United States v. Ballin, 144 U.S. 1, 4 (1892) (holding that where Senate journal speaks on whether a quorum was present, “it must be assumed to speak the truth” ).
4: Baker v. Carr, 369 U.S. 186, 214 (1962).
5: 395 U.S. 486 (1969).
6: U.S. Const. art. I, § 2, cl. 2 ( “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” ).
7: 395 U.S. at 519 ( “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members[.]” ) (citing U.S. Const. art. I, § 5, cl. 1).
8: Id. at 489.
9: Id. at 548.
10: Id.
11: Id. at 549. But see Roudebush v. Hartke, 405 U.S. 15, 18–19 (1972) (noting that “[w]hich candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question” with respect to which of two candidates is entitled to be seated in a close election); Reed v. Cty. Comm’rs, 277 U.S. 376, 388 (1928) (The Senate “is the judge of the elections[.] . . . It is fully empowered, and may determine such matters without the aid of the House of Representatives or the executive or judicial department.” ).
12: 395 U.S. at 549.
13: 462 U.S. 919, 940 (1983).
14: Id. at 923.
15: Id. at 940 (citing U.S. Const. art. I, § 8.).
16: Id. at 942–93.
17: Id. at 941.
18: Id. at 941–42 ( “No policy underlying the political question doctrine suggests that Congress or the Executive . . . can decide the constitutionality of a statute; that is a decision for the courts.” ).
19: 495 U.S. 385 (1990).
20: U.S. Const. art. I, § 7, cl. 1 ( “All bills for raising Revenue shall originate in the House of Representatives[.]” ).
21: 495 U.S. at 387–88.
22: Id. at 391–92.
23: Id. at 393. The Court ultimately rejected Munoz-Flores’s challenge on the merits and held that the Victims of Crime Act was not a bill “for raising revenue.” Id. at 400.