Origins and Development.

In the first decade after ratifica- tion of the Constitution, the Court in Ware v. Hylton658 refused to pass on the question whether a treaty had been broken, and in Martin v. Mott,659 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 the roots of the doctrine are most clearly seen in Marbury v. Madison,660 where 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.”661

In Luther v. Borden,662 however, the Court made clear that the doctrine went beyond considerations of interference with executive functions. This case, arising from the Dorr Rebellion (a period of political unrest in Rhode Island), considered the claims of two competing factions vying to be declared the lawful government of Rhode Island.663 Chief Justice Taney, for the Court, 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.664 Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the clause empowering the United States to guarantee to every state a republican form of government,665 and this clause committed the determination of that issue to Congress.

“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 necessarily 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.”666 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.”667

Moreover, in effectuating the provision in the same clause that the United States should protect states 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.668 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.669


3 U.S. (3 Dall.) 199 (1796). back
25 U.S. (12 Wheat.) 19 (1827). back
5 U.S. (1 Cr.) 137 (1803). back
5 U.S. (1 Cr.) at 170. In Decatur v. Paulding, 39 U.S. (14 Pet.) 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, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838). back
48 U.S. (7 How.) 1 (1849). back
Cf. Baker v. Carr, 369 U.S. 186, 218–22 (1962); id. at 292–97 (Justice Frankfurter dissenting). back
Luther, 48 U.S. (7 How.) at 40. back
48 U.S. at 42 (citing Article IV, § 4). back
48 U.S. at 42. back
Id. back
48 U.S. at 43. back
48 U.S. at 44. back