The Doctrine Reappears.

Despite the apparent narrowing of the doctrine in Baker and Powell, the Court has not abandoned it. Reversing a lower federal court ruling subjecting the training and discipline of National Guard troops to court review and supervision, the Court held that under Article I, § 8, cl. 16, the organizing, arming, and disciplining of such troops are committed to Congress and by congressional enactment to the Executive Branch. “It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches, directly responsible—as the Judicial Branch is not—to the elective process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.”711

The suggestion of the infirmity of the political question doctrine was rejected, since “because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise.”712 In staying a grant of remedial relief in another case, the Court strongly suggested that the actions of political parties in national nominating conventions may also present issues not meet for judicial resolution.713 A challenge to the Senate’s interpretation of and exercise of its impeachment powers was held to be nonjusticiable; there was a textually demonstrable commitment of the issue to the Senate, and there was a lack of judicially discoverable and manageable standards for resolving the issue.714

Despite the occasional resort to the doctrine, the Court continues to reject its application in language that confines its scope. Thus, when parties challenged the actions of the Secretary of Commerce in declining to certify, as required by statute, that Japanese whaling practices undermined the effectiveness of international conventions, the Court rejected the Government’s argument that the political question doctrine precluded decision on the merits. The Court’s prime responsibility, it said, is to interpret statutes, treaties, and executive agreements; the interplay of the statutes and the agreements in this case implicated the foreign relations of the Nation. “But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.”715

After requesting argument on the issue, the Court held that a challenge to a statute on the ground that it did not originate in the House of Representatives as required by the Origination Clause was justiciable.716 Turning back reliance on the various factors set out in Baker, in much the same tone as in Powell v. McCormack, the Court continued to evidence the view that only questions textually committed to another branch are political questions. Invalidation of a statute because it did not originate in the right House would not demonstrate a “lack of respect” for the House that passed the bill. “[D]isrespect,” in the sense of rejecting Congress’s reading of the Constitution, “cannot be sufficient to create a political question. If it were every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible.”717 That the House of Representatives has the power and incentives to protect its prerogatives by not passing a bill violating the Origination Clause did not make this case nonjusticiable. “[T]he fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question.”718

The Court also rejected the contention that, because the case did not involve a matter of individual rights, it ought not be adjudicated. Political questions are not restricted to one kind of claim, but the Court frequently has decided separation-of-power cases brought by people in their individual capacities. Moreover, the allocation of powers within a branch, just as the separation of powers among branches, is designed to safeguard liberty.719 Finally, the Court was sanguine that it could develop “judicially manageable standards” for disposing of Origination Clause cases, and, thus, it did not view the issue as political in that context.720

In Zivotosky v. Clinton,721 the Court declined to find a political question where a citizen born in Jerusalem sought, pursuant to federal statute, to have “Israel” listed on his passport as his place of birth, the Executive Branch having declined to recognize Israeli sovereignly over that city. Justice Roberts, for the Court, failed to even acknowledge the numerous factors set forth in Justice Brennan’s Baker opinion save two—whether there is a textually demonstrable commitment of the issue to another department or a lack of judicially discoverable and manageable standards for resolving it.722 The Court noted that while the decision as whether or not to recognized Jerusalem as the capital of Israel might be exclusively the province of the Executive Branch, there is “no exclusive commitment to the Executive of the power to determine the constitutionality of a statute,”723 such as whether Congress is encroaching on Presidential powers. Similarly, this latter question, while perhaps a difficult one, is amenable to the type of separation of powers “standards” used by the Court in other separation of powers cases.

In short, the political question doctrine may not be moribund, but it does seem applicable to a very narrow class of cases. Significantly, the Court made no mention of the doctrine when it resolved issues arising from Florida’s recount of votes in the closely contested 2000 presidential election,724 despite the fact that the Constitution vests in Congress the authority to count electoral votes, and further provides for selection of the President by the House of Representatives if no candidate receives a majority of electoral votes.725

Footnotes

711
Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar prudential concerns seem to underlay, though they did not provide the formal basis for, the decisions in O’Shea v. Littleton, 414 U.S. 488 (1974), and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974). [Back to text]
712
413 U.S. at 11. Other considerations of justiciability, however, id. at 10, preclude using the case as square precedent on political questions. Notice that in Scheuer v. Rhodes, 416 U.S. 232, 249 (1974), the Court denied that the Gilligan v. Morgan holding barred adjudication of damage actions brought against state officials by the estates of students killed in the course of the conduct that gave rise to both cases. [Back to text]
713
O’Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The issue was mooted by the passage of time and was not thereafter considered on the merits by the Court. Id. at 816 (remanding to dismiss as moot). It was also not before the Court in Cousins v. Wigoda, 419 U.S. 477 (1975), but it was alluded to there. See id. at 483 n.4, and id. at 491 (Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief Justice Burger using political question analysis to dismiss a challenge to presidential action). But see id. at 997, 998 (Justice Powell rejecting analysis for this type of case). [Back to text]
714
Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its decision as perfectly consonant with Powell v. McCormack. Id. at 236–38. [Back to text]
715
Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 230 (1986). See also Davis v. Bandemer, 478 U.S. 109 (1986) (challenge to political gerrymandering is justiciable). But see Vieth v. Jubelirer, 541 U.S. 267 (2004) (no workable standard has been found for measuring burdens on representational rights imposed by political gerrymandering). [Back to text]
716
United States v. Munoz-Flores, 495 U.S. 385 (1990). [Back to text]
717
495 U.S. at 390 (emphasis in original). [Back to text]
718
495 U.S. at 393. [Back to text]
719
495 U.S. at 393–95. [Back to text]
720
495 U.S. at 395–96. [Back to text]
721
566 U.S. ___, No. 10–699, slip op. (2010). [Back to text]
722
This left it to Justice Sotomayor and Justice Breyer to raise and address the other considerations, respectively, in concurrence and dissent. [Back to text]
723
566 U.S. ___, No. 10–699, slip op. at 8. [Back to text]
724
See Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000); and Bush v. Gore, 531 U.S. 98 (2000). [Back to text]
725
12th Amendment. [Back to text]