The Political Question Doctrine: Political Process, Elections, and Gerrymandering (Part 6)

"This Legal Sidebar is the sixth in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The Court in the modern era has applied the political question doctrine to some aspects of legislative regulation of elections, particularly in the area of partisan gerrymandering. Partisan gerrymandering is “the practice of dividing a geographic area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” Government officials seeking to draw legislative districts to affect election results may adopt several different tactics. For instance, they may create districts containing different numbers of voters, effectively diluting the votes of individuals in more populous districts. In the alternative, legislators may create districts that contain equal numbers of voters but where boundaries are drawn to manipulate the concentration of voters in each district based on characteristics such as voters’ race or their political affiliation. The Supreme Court has held that equal protection challenges to race-based gerrymandering and one-person-one-vote claims based on unequal districts are justiciable. However, for decades the Court was unable to agree on an approach to challenges to partisan gerrymandering.

Unlike one-person-one-vote cases, a partisan gerrymandering case typically involves a voter in a district that is not malapportioned based on population but rather has been drawn to disadvantage one political party. In the words of the Supreme Court, in a political gerrymander, voters affiliated with a disfavored party are either (1) “packed” into a few districts—in effect conceding those districts by large margins and “wasting” votes that could help the disfavored party compete in other areas—or (2) “cracked” into small groups and spread across multiple districts so that they cannot achieve a majority in any one district. In these circumstances, plaintiffs cannot argue that their votes are inherently worth less than that of any other voter—rather, they must argue that the creation of a district that disfavors a particular political party violates the Constitution for other reasons.."
Supreme Court Political Doctrine (Pt. 6) 

The Political Question Doctrine: Congressional Governance and Impeachment as Political Questions (Part 5)

"This Legal Sidebar is the fifth in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The Supreme Court has applied the political question doctrine to cases involving the internal governance of Congress, though recent decisions have construed the doctrine narrowly in this context. In the preBaker case Marshall Field & Co. v. Clark, plaintiffs challenging a tariff law contended that the law was invalid because a section of the bill passed by Congress was omitted from the final version of the law signed by the President. The Court concluded that it could not adjudicate this issue. Because of the “respect due to a co-ordinate branch of the government,” the Court had to take as “conclusive” the fact that the act was attested by the signatures of the presiding officers of the houses of Congress and approved by the President. Baker explained that Clark signified the need for “respect” to coequal branches and for “finality and certainty” about statutes. A few cases since Baker have added color to the concept of “respect” in this context.

For example, in Powell v. McCormack, an individual elected to the House of Representatives challenged a House resolution excluding him from his seat in Congress. Although the Member-elect met the age and citizenship requirements in Article I, Section 2, the House found that he had misrepresented travel expenses and made illegal salary payments to his wife. The defendants—Members and officers of the House—argued that the text of the Constitution, specifically Article I, Section 5, gave Congress exclusive authority to judge the qualifications of its own Members, so Congress could determine that the Member was unqualified. The Supreme Court held that the case could go forward and that the Member-elect was entitled to relief. On the question of justiciability, the Court explained that, despite the text the defendants cited from Article I, Section 5, there was no “textually demonstrable” commitment of this constitutional question to another branch. At most, the Constitution gave Congress the power to judge the “qualifications expressly set forth in the Constitution,” not the power to set new qualifications. Nor did the Court conclude that “the respect due co-ordinate branches” barred hearing the case, even though it was interpreting the Constitution “in a manner at variance with the construction given the document by another branch.” In the view of the Powell Court, constitutional conflicts with other branches were inevitable under the constitutional system and were no excuse for avoiding a case where there existed “judicially manageable standards” sufficient to judge the question..."
Supreme Court Political Doctrine (part 5) 

The Political Question Doctrine: Foreign Affairs as a Political Question (Part 4)

"This Legal Sidebar is the fourth in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

One area where the political question doctrine has particular importance is in foreign affairs. In 1918, the Court wrote, “The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—‘the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” However, despite that sweeping statement, as the Court recognized in Baker, not “every case or controversy which touches foreign relations lies beyond judicial cognizance;” rather, the Court analyzes each question on a case-by-case basis. For example, many pre-Baker cases concluded that the judiciary was bound to defer to the political branches on certain questions involving the validity of treaties or the recognition of foreign governments. The Baker court characterized those cases as ones in which “resolution of such issues frequently turn on standards that defy judicial application, . . . involve the exercise of a discretion demonstrably committed to the executive or legislature . . . [or] uniquely demand single-voiced statement of the Government’s views.”

The first major post-Baker case to consider these principles was the 1973 case Gilligan v. Morgan. In Gilligan, the Supreme Court declined to consider a claim that defective training of the Ohio National Guard had led to the violence that occurred at Kent State University three years earlier. The plaintiffs sought a “judicial evaluation of the appropriateness of the ‘training, weaponry and orders’ of the Ohio National Guard” and “continuing judicial surveillance” over the Guard to ensure compliance with any court-approved requirements. Although the case did not involve foreign policy, it raised related considerations. Recognizing that the case involved “[t]he complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force,” the Court gave two reasons why the political question doctrine applied. First, Article I, Section 8, of the Constitution gives the authority for “organizing, arming, and disciplining the Militia” to Congress. Second, in concert with the explicit textual commitment of military supervision to a branch outside the judiciary, the Court recognized that the judicial branch was uniquely poorly suited to supervise this activity: “[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence.” Following what Baker called the “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” the Court concluded that the case involved a political question.."
Supreme Court Political Doctrine (Part 4) 

The Political Question Doctrine: The Doctrine in the Modern Era (Part 3)

"This Legal Sidebar is the third in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The Supreme Court began to develop its modern application of the political question doctrine in the 1939 case Coleman v. Miller. In Coleman, the Court addressed the Kansas legislature’s recent approval of the proposed Child Labor Amendment to the Constitution, which had been submitted to the states for ratification 13 years prior. Members of the Kansas legislature who had voted against the amendment petitioned for a writ of mandamus, seeking to revoke the approval. They raised certain procedural challenges to the ratification and argued that the passage of time had rendered Kansas’s approval of the amendment invalid. The opinion of the Court, authored by Chief Justice Charles Evans Hughes, affirmed an opinion from the Supreme Court of Kansas denying the plaintiffs' petition. Chief Justice Hughes’s opinion explained that the “efficacy of ratifications by state legislature . . . should be regarded as a political question pertaining to the political departments.” The Court further clarified, citing Luther, that it was a question solely for Congress, and not for the courts, whether an amendment had been adopted within a “reasonable time.”

It was against this background that the Court decided Colegrove v. Green in 1946. By that time, movement of populations from rural to urban areas had led to severe “malapportionment” in state legislatures. Throughout the country, state legislative districts were drawn such that voters in rural areas had disproportionate power compared to their urban counterparts. State governments, made up of the representatives of those rural voters, were unwilling to fix this problem. As a result, voters in underrepresented districts turned to the courts and the Constitution for a remedy. In Colegrove, a sevenmember Court was presented with a constitutional challenge to an Illinois districting arrangement where plaintiffs were members of districts with much larger populations than other districts. The challenge was based in part on the Guarantee Clause, as well as on the Fourteenth Amendment. A plurality of three Justices joined an opinion by Justice Frankfurter, concluding that the Court lacked jurisdiction in light of the “peculiarly political nature” of the case. The plurality noted that under Article I, Section 4, of the Constitution, “The Times, Places and Manner of holding Elections for . . . Representative, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Citing that provision, the plurality concluded that the authority to regulate state districting rested “exclusively” with Congress and that courts had no authority to enter this political thicket. The Colegrove plurality’s view of the political question doctrine, as the Supreme Court later recognized, “left pervasive malapportionment unchecked.”.."
Supreme Court Political Doctrine 

The Political Question Doctrine: Historical Background (Part 2)

"This Legal Sidebar is the second in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the UnitedStates, Analysis and Interpretation.

The political question doctrine has its origins in the foundational case for judicial review, Marbury v.Madison. Marbury involved a suit seeking to force Secretary of State James Madison to deliver a signed commission to a newly appointed official, William Marbury. The commission had been signed by the previous Administration but not delivered. Following the change in presidential Administrations, Madison refused to deliver it. Among the issues presented in that case was whether the Court even had the authority to adjudicate the legality of Madison’s refusal to deliver the commission. That question, according to Chief Justice Marshall’s opinion for the Court, turned on “the nature” of the government action in question. As the Court explained, “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Thus, if the act of an official is one in which the “executive possesses a constitutional or legal discretion, nothing can be more perfectly clear that their acts are only politically examinable.” However, if a “specific duty is assigned by law, and individual rights depend on the performance of that duty,” then injured individuals have a right to resort to the courts. According to the Chief Justice, “[t]he power of nominating to the senate, and the power of appointing the person nominated” were political questions, and fundamentally unreviewable. By contrast, “if, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority.” Ultimately, the Court concluded that the question of whether to deliver Marbury’s commission was not a political one, as Marbury had a legal right in the appointment..."
Supreme Court Political Doctrine(Pt. 2) 

The Political Question Doctrine: An Introduction (Part 1)

"This Legal Sidebar is the first in a six-part series that discusses the Supreme Court’s political question doctrine, which instructs that federal courts should forbear from resolving questions when doing so would require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on powers the Constitution vests in the legislative or executive branches. By limiting the range of cases federal courts can consider, the political question doctrine is intended to maintain the separation of powers and recognize the roles of the legislative and executive branches in interpreting the Constitution. Understanding the political question doctrine may assist Members of Congress in recognizing when actions of Congress or the executive branch would not be subject to judicial review. For additional background on this topic and citations to relevant sources, please see the Constitution of the United States, Analysis and Interpretation.

The political question doctrine limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements—such as standing, ripeness, and mootness—are met. The Supreme Court has stated that, for purposes of Article III of the Constitution, “no justiciable ‘controversy’ exists when parties seek adjudication of a political question.” The term political question is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice Marshall’s landmark opinion in Marbury v. Madison, is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time. Rather than referring generally to any such political issue, the term political question expresses the principle that some issues are either entrusted solely to another branch of government or beyond the competence of the judiciary to review. A finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.."
Supreme Court Political Doctrine