The Political Question Doctrine - Sept. 7

Question 1

What is the political-question doctrine? (Q)

Answer 1

The political-question doctrine provides that federal courts will not determine any matter that has been committed by the U.S. Constitution to the executive or legislative branches. The political-question doctrine is one way that the federal government preserves the separation of powers between the executive, legislative, and judicial branches of government.

Question 2

Under the political-question doctrine, what are the five factors that indicate the presence of a non-justiciable political question? (Q)

Answer 2

Under the political-question doctrine, the five factors that indicate the presence of a non-justiciable political question are:

the U.S. Constitution makes a textually demonstrable commitment of the issue to Congress or the president,

there is a lack of judicially discoverable and manageable standards for answering the question,

the question involves a policy determination that should be made by a political branch,

a judicial determination of the question would mean expressing a lack of due respect for either of the other two branches, and

there is a need for a single definitive answer from Congress or the president.

There can also be a sixth factor: an unusual need to adhere to a decision made by Congress or the president. However, few courts have relied on this factor to find the existence of a political question.

Question 3

Which two of the factors a court considers in identifying whether a case involves a political question are usually dispositive? (Q)

Answer 3

In practice, only the following two factors are usually dispositive of whether a case presents a political question:

a textually demonstrable commitment of the question to another branch of government by the U.S. Constitution and

a lack of judicially discoverable and manageable standards.

Question 4

An executive branch official was concerned that the procedures used by the U.S. Senate to adjudicate articles of impeachment were unfair. The official wanted the U.S. Supreme Court to review the procedures to decide if they afforded sufficient due process to an executive branch official facing impeachment charges.

Assuming that the official has standing to bring the suit, can the Court review the procedures used by the U.S. Senate to conduct an impeachment? (Q)

Answer 4

No. The U.S. Supreme Court cannot review procedures used by the U.S. Senate to adjudicate articles of impeachment. The procedures present non-justiciable political questions. Two of the five factors that indicate a non-justiciable political question are:

the U.S. Constitution makes a textually demonstrable commitment of the issue to Congress or the president and

there is a lack of judicially discoverable and manageable standards for answering the question.

Here, Article I, § 3 of the Constitution grants the Senate the sole power to try impeachments. The Constitution commits the issue of impeachment to Congress. Given the absence of judicially manageable standards for defining an impeachment trial, this constitutional language renders questions regarding the impeachment-trial process non-justiciable as political questions. Thus, the impeachment process cannot be reviewed by the Court.

Question 5

A member of the House of Representatives (House) questioned whether a person elected to the House met the constitutional requirements for service. The member cited Article I, § 5 of the U.S. Constitution to argue that Congress is the judge of the qualifications of its own members.

Can the House determine whether a person elected to office meets the constitutional requirements for service in the House? (Q)

Answer 5

Yes. The House can determine whether a person elected to office meets the constitutional requirements for service in the House, which include age, citizenship, and residency. If the U.S. Constitution makes a textually demonstrable commitment of the issue to Congress or the president, then that issue is a non-justiciable political question that can be answered only by the body identified in the Constitution.

Here, Article I, § 5 of the Constitution contains a demonstrable textual commitment to have the House resolve disputes about whether a member meets the constitutional qualifications for holding a seat in the House. Therefore, these are political questions that the House itself can address. However, the Constitution does not give the House the authority to impose any additional qualifications for membership. Thus, the House can determine if an elected person meets the requirements.

Question 6

Congress authorized the use of military force to respond to a terrorist attack on the United States. After 15 years, the resolution remained in force, and the president regularly invoked the resolution to deploy military forces to new areas. Congress did not specifically authorize the deployment of these troops nor declare war against the nations in which the deployments took place. A private in the military received a deployment notice for a combat mission to a foreign country. The private sued, seeking an injunction against the proposed deployment. The private argued that the resolution had lapsed and Congress had not otherwise authorized the deployment. The federal government moved to dismiss the suit, arguing that whether the resolution had lapsed was a non-justiciable political question.

Are the issues of when hostilities have ceased and whether the president has power to commit troops non-justiciable political questions? (Q)

Answer 6

Yes. Issues about when hostilities have ceased and whether the president has power to commit troops to a place are non-justiciable political questions. Three of the five factors indicating a non-justiciable political question are:

a textually demonstrable, constitutional commitment of the issue to a political branch;

a lack of judicially discoverable, manageable standards to answer the question; and

a need for a single, definitive answer.

Here, the U.S. Constitution’s text gives Congress the power to declare war and makes the president the commander-in-chief. There are also no judicially administrable standards to decide the duration of war powers. Finally, there is a need for a single answer to whether the United States is at war. Thus, the issues of when hostilities have ceased and whether the president has power to commit troops to this foreign country are non-justiciable political questions.

Question 7

What are the six factors from Baker v. Carr that the court looks at to determine whether a case falls under the PQD? (Seigel)

Answer 7

1. Textually demonstrable constitutional commitment of the issue to a coordinate political department
2. A lack of judicially discoverable and manageable standards for resolving it
3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion
4. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government
5. An unusual need for unquestioning adherence to a political decision already made
6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question (Class 6 PPT)

Question 8

What is a simplified version of the Baker v. Carr test? (Siegel)

Answer 8

1. Text of Constitution Gives Final Word to another branch
2. Not the kind of question judiciary can handle
3. Likely to cause unbearable embarrassment or harm to U.S. Interest (Class 6 PPT)