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)