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Political Question

POLITICAL QUESTION

An issue that the federal courts refuse to decide because it properly belongs to the decision-making authority of elected officials.

Political questions include such areas as the conduct of foreign policy, the ratification of constitutional amendments, and the organization of each state's government as defined in its own constitution. The rule preventing federal courts from deciding such cases is called the political question doctrine. Its purpose is to distinguish the role of the federal judiciary from those of the legislature and the executive, preventing the former from encroaching on either of the latter. Under the rule, courts may choose to dismiss cases even if they have jurisdiction over them. However, the rule has no precise formulation, and its development since the 1960s has sometimes been unpredictable.

The Supreme Court originated the idea of political questions in the early 1800s during its formative era. As with other judicial doctrines created by the Court, the rule is interpretive and self-imposed. It is neither a result of legislation nor a part of the U.S. Constitution, although it appears to emanate from the Constitution's separation of powers. The Court created the political question doctrine as part of the broader concept of justiciability—the issue of whether a matter is appropriate for court review. Appropriate matters are called justiciable controversies and may proceed to court. Political questions are not regarded as appropriate matters; they are not justiciable and, generally, will be dismissed. The political question doctrine will not be applied to every matter that arouses fierce public debate, as seen in the Court's rulings on abortion and affirmative action. As the history of the Supreme Court shows, the determination of whether an issue is justiciable is at its own discretion.

Chief Justice john marshall first used the term political question in 1803 at a time when the Court sought to tread delicately between warring factions of politicians in Washington. Not until 1849 was the idea elaborated, in response to a crisis in the state of Rhode Island known as the Dorr Rebellion: a political uprising had resulted in the passage of two separate state constitutions, the declaration of martial law, and the promise of military intervention by President john tyler. The Supreme Court was asked to settle critical constitutional questions about the nature of republican government but refused (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 581 [1849]). Chief Justice roger taney instead delivered the first articulation of the doctrine: federal courts should leave certain constitutional questions to the legislative and executive branches in any matter that is "a political question to be settled by the political power."

From the mid-nineteenth century until the 1960s, the political question doctrine changed very little. Then the Supreme Court began to narrow it: where previously a broad rule applied,

now matters that would have been rejected as political questions became justiciable controversies. In a landmark case in 1962, the Court intervened to allow a challenge to the way in which the Tennessee legislature apportioned its voting districts (baker v. carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663). Again, in 1969, the Court took up a matter that previously would have been dismissed. This was its decision that the House of Representatives could not exclude a duly elected member who met all constitutional qualifications, despite the provision in Article I of the Constitution that gives both houses of Congress the power to judge qualifications (Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491).

These cases cast doubt on the future of the doctrine. In 1974, the Court added further uncertainty when it ruled against President Richard M. Nixon's claim of executive privilege in the watergate scandal (united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039). It is well settled that the federal courts cannot supervise or control the decisions of the president or other executive officials. President Nixon had relied on this fact when he defied congressional subpoenas asking him to release tapes and documents made in the White House. The Court chose, however, not to adhere rigidly to the rule by holding that the demands of a fair trial and criminal justice outweighed the president's claim.

further readings

Arnhart, Larry. 2003. Political Questions: Political Philosophy from Plato to Rawls. 3d ed. Prospect Heights, Ill.: Waveland Press.

Pushaw, Robert J., Jr. 2002. "The Presidential Election Dispute, the Political Question Doctrine, and the Fourteenth Amendment." Florida State University Law Review 29 (winter): 603–23.

Tushnet, Mark V. 2002. "Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine." North Carolina Law Review 80 (May): 1203–35.

cross-references

Apportionment; Dorr, Thomas Wilson; Judicial Review; Warren Court.

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