CRS Annotated Constitution

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The Doctrine Before Baker v. Carr.—Over the years, the political question doctrine has been applied to preclude adjudication of a variety of issues. Certain factors appear more or less consistently through most but not all of these cases, and it is perhaps best to indicate the cases and issues deemed political before attempting to isolate these factors.[p.690]

(1) 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,526 whether the attack was on the government of the State itself527 or on some manner in which it had acted,528 but there have been cases in which the Court has reached the merits.529

(2) Although there is language in the cases that would if applied make all questions touching on foreign affairs and foreign policy political,530 whether the courts have adjudicated 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 state531 or who is the de jure or de facto ruler of a foreign state532 is conclusive on the courts, but in the absence of a definitive executive action 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.533 Moreover, the courts have often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized.534 Simi[p.691]larly, 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 obligation535 and whether a treaty has lapsed because of the foreign state’s loss of independence536 or because of changes in the territorial sovereignty of the foreign state,537 but the Court will not only interpret the domestic effects of treaties,538 it will at times interpret the effects bearing on international matters.539 The Court has 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.540

(3) Ordinarily, the Court will not look behind the fact of certification that the standards requisite for the enactment of legislation541 or ratification of a constitutional amendment542 have in fact been met, although it will interpret the Constitution to deter[p.692]mine what the basic standards are,543 and it will decide certain questions if the political branches are in disagreement.544

(4) Prior to Baker v. Carr,545 cases challenging the distribution of political power through apportionment and districting,546 weighed voting,547 and restrictions on political action548 were held to present nonjusticiable political questions.

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, necessarily stated baldly in so summary a fashion, would appear to be the lack of requisite information and the difficulty of obtaining it,549 the necessity for uniformity of decision and deferrence to the wider responsibilities of the political departments,550 and the lack of adequate standards to resolve a dispute.551 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.552


526 Article IV, Sec. 4.
527 As it was on the established government of Rhode Island in Luther v. Borden, 7 How. (48 U.S.) 1 (1849). See also Texas v. White, 7 Wall. (74 U.S.) 700 (1869); Taylor v. Beckham, 178 U.S. 548 (1900).
528 Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912); 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).
529 All 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, 21 Wall (88 U.S.) 162, 175–176 (1875) (denial of suffrage to women no violation of republican form of government).
530 Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948).
531 United States v. Palmer, 3 Wheat. (16 U.S.) 610 (1818); Kennett v. Chambers, 14 How. (55 U.S.) 38 (1852).
532 Jones 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).
533 United 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).
534 United States v. Reynes, 9 How. (50 U.S.) 127 (1850); Garcia v. Lee, 12 Pet. (37 U.S.) 511 (1838); Keene v. McDonough, 8 Pet. (33 U.S.) 308 (1834). See also Williams v. Suffolk Ins. Co., 13 Pet. (38 U.S.) 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). And see First National City Bank v. Banco Para el Comercio de Cuba, 462 U.S. 611 (1983); W. S. Kirkpatrick Co. v. Environmental Tectronics Corp., 493 U.S. 400 (1990)
535 Doe v. Braden, 16 How. (57 U.S.) 635 (1853).
536 Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947).
537 Kennett v. Chambers, 14 How. (55 U.S.) 38 (1852). On the effect of a violation by a foreign state on the continuing effectiveness of the treaty, see Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913).
538 Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796). Cf. Chinese Exclusion Cases, 130 U.S. 581 (1889) (conflict of treaty with federal law). On the modern formulation, see Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 229–230 (1986).
539 Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407 (1886).
540 Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. 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, 4 Wheat. (17 U.S.) 52 (1819). The cases involving the status of Indian tribes as foreign states usually have presented political questions but not always. The Cherokee Nation v. Georgia, 5 Pet. (30 U.S.) 1 (1831); United States v. Sandoval, 231 U.S. 28 (1913); Worcester v. Georgia, 6 Pet. (31 U.S.) 515 (1832).
541 Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547 (1896); cf. Gardner v. The Collector, 6 Wall. (73 U.S.) 499 (1868). See, for the modern formulation, United States v. Munoz–Flores, 495 U.S. 385 (1990).
542 Coleman v. Miller, 307 U.S. 433 (1939) (Congress’ discretion to determine what passage of time will cause an amendment to lapse and effect of previous rejection by legislature).
543 Missouri Pacific 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 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, 253 U.S. 221 (1920); National Prohibition Cases, 253 U.S. 350 (1920); Hollingsworth v. Virginia, 3 Dall. (3 U.S.) 378 (1798) (constitutional amendments).
544 Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S. 583 (1938).
545 369 U.S. 186 (1962).
546 Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947).
547 South v. Peters, 339 U.S. 276 (1950) (county unit system for election of statewide officers with vote heavily weighed in favor of rural, lightly–populated counties).
548 MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating petitions must be spread among counties of unequal population).
549 Thus, see, 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).
550 Thus, see, e.g., Williams v. Suffolk Ins. Co., 13 Pet. (38 U.S.) 415, 420 (1839). Similar considerations underlay the opinion in Luther v. Borden, 7 How. (48 U.S.) 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.
551 Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of the Court); id., 268, 287, 295, (Justice Frankfurter dissenting.)
552 For a statement of the “prudential” view, see generally A. Bickel, The Least Dangerous Branch—The Supreme Court at the Bar of Politics (New York: 1962), but see esp. 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, 6 Wheat. (19 U.S.) 264, 404 (1821). See also H. Wechsler, Principles, Politics, and Fundamental Law—Selected Essays (Cambridge: 1961), 11–15.
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