ArtIII.S2.C1.9.5 Modern Political Question Doctrine

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 Baker criteria are quoted in virtually every case involving the political question doctrine. However, since Baker, the Court has applied the doctrine on relatively few occasions and has taken a fairly narrow view of its reach. As a result, it remains the case that the “political question doctrine can only be understood by examining the specific areas where the Supreme Court has invoked it.” 1 Since Baker, those areas include cases involving some aspects of foreign policy, congressional internal regulation, impeachment, and partisan gerrymandering.2

Erwin Chemerinsky, Federal Jurisdiction § 2.6.1 (6th ed. 2012). back
In other areas, the Court has declined to invoke the political-question doctrine. Some cases in this category are discussed below. See also, e.g., Cty. of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 248–50 (1985) (holding that damages claims for tribal land use brought by certain Indian nations was justiciable even though case involved Congress’s authority over Indian affairs); Elrod v. Burns, 427 U.S. 347, 351–53 (1976) (holding that dismissal of state public employees because of partisan affiliation did not involve political questions because the political question doctrine was only implicated in cases involving separation of powers). back