Political Question Doctrine (Update 2)

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Since its modern-era recognition of the political question doctrine in baker v. carr (1962), the Supreme Court has never signaled a weakening of its nominal commitment to the principle that some issues do not lend themselves to adjudication in a court of law. In an increasingly large majority of cases in which a party has argued that the doctrine bars adjudication, however, the Court has found it to be an insufficient justification for departure from the normal presumption of judicial review.

The scope of the political question doctrine has been shaped as much by cases in which the Court found it not to apply as by cases in which the Court applied the doctrine. Indeed, the Court has repeatedly refused to dismiss even cases falling within categories that many commentators had thought were defined as "political" in nature. These include cases involving foreign affairs and treaties; political gerrymandering; legislative apportionment; structural requirements on the internal workings of the legislative branch; and specific grants of power to Congress such as the power to control immigration; and the authority over american indian affairs. From these decisions, it is clear that the Court does not avoid adjudication merely because of the topic involved in the litigation. Indeed, some commentators believe that to do so would be an abdication of the Court's responsibility to decide cases and controversies.

The key to the Court's recognition of a nonjusticiable issue is the nature of the legal wrong. If the plaintiff can allege a concrete injury caused by the defendant's violation of a legal provision, the Court will ordinarily consider that claim on the merits, unless the provision at stake does not specify enforceable limits on the defendant's behavior. Even if the law involves politically sensitive areas or matters over which the other branches may have wide latitude for discretion, the Court has been willing to adjudicate as long as it can identify those legal limits against which the defendant's conduct can be evaluated. In the rare case in which no limits are specified, such as in the clause guaranteeing a republican form of government, the Court will dismiss.

nixon v. united states (1993) is the first post-Baker case in which a majority of the Court dismissed a claim on political question grounds. The Court found that the alleged violation—the failure of the U.S. senate properly to "try" the impeachment of a federal judge—rested on an unusual provision of the Constitution that by its terms excluded the Court by granting to the Senate the "sole power to try impeachments." Because no constitutional provision other than the impeachment clauses grants "sole" power, there is little to suggest that this holding will have an impact outside the impeachment context. Thus, developments in the political question doctrine appear to confirm the view of those who have argued that the doctrine does not provide license for the Court to avoid decisions on the merits.

Rebecca L. Brown


Brown, Rebecca L. 1993 When Political Questions Affect Individual Rights: The Other Nixon v. United States. Supreme Court Review 1993:125–155.

Henkin, Louis 1976 Is There a "Political Question" Doctrine? Yale Law Journal 85:597–625.

Mulhern, J. Peter 1998 In Defense of The Political Question Doctrine. University of Pennsylvania Law Review 137:97–176.

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Political Question Doctrine (Update 2)

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