In United States constitutional law, the political question doctrine holds that a constitutional dispute requiring or involving knowledge of a non-legal character, techniques not suitable for a court, or matters explicitly assigned by the Constitution to Legislative or Executive branches lies within the political realm, rather than the judiciary, which is apolitical by design. Judges customarily refuse to address such matters as a matter of justiciability, questioning whether their courts are an appropriate forum for the case. Legal questions are deemed justiciable, while political questions are nonjusticiable.Huhn, Wilson R. American Constitutional Law Volume 1. 2016. One scholar explained:
A ruling of nonjusticiability prevents a case's core issue from being resolved in a court of law. When the issue involves duties not addressed by the Constitution, courts leave it to the democratic process, rather than resolving political disputes themselves.
Origin The doctrine can be traced to the landmark Supreme Court ruling in Marbury v. Madison (1803).§ 15 "Case or Controversy"—Political Questions, 20 Fed. Prac. & Proc. Deskbook § 15 (2d ed.) In that case, Chief Justice John Marshall distinguished between the US Secretary of State's legal work and purely discretionary political tasks, only the former of which involves legally identifiable standards that can be reviewed by a court of law. Marshall argued that courts should generally not hear cases that involve political questions without implicating individual rights, though later decisions allowed the doctrine's application in cases that do implicate individual rights.
Former Associate Justice Stephen Breyer further traces this doctrine to the Roman statesman Cicero's observation that "when the cannons roar, the laws fall silent," such that politicians are granted leeway to violate the written law amid political emergencies like internal rebellion and external warfare. In Breyer's view, rather than making such political acts non-reviewable, the Constitution of the United States delegates that authority to Congress by empowering it to impeach presidents for violating their oath of office.
Doctrine Unlike the rules of standing, ripeness, and mootness, when the political question doctrine applies, a particular question is beyond judicial competence no matter who raises it, how immediate the interests it affects, or how burning the controversy. The doctrine is grounded in the separation of powers, as well as the federal judiciary's desire to avoid inserting itself into conflicts between branches of the federal government. It is justified as leaving political questions to the political process, in which voters can indirectly approve or reject the challenged action through voting.
The leading Supreme Court case on the political question doctrine is Baker v. Carr (1962). In that case, the Supreme Court held that an unequal apportionment of a state legislature may have denied equal protection and presented a justiciable issue. In Baker, the Court outlined six characteristics "[p]rominent on the surface of any case held to involve a political question":
"a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing a lack of respect for coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."
The first factor—a textually demonstrable commitment to another branch—is the classical view that the Court must decide all cases and issues before it unless, as a matter of constitutional interpretation, the Constitution itself commits the issue to another branch of government.Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1, 7–9 (1959); Weston, Political Questions, 38 Harv.L.Rev. 296 (1925). The second and third factors—lack of judicially discoverable standards and involvement of the judiciary in nonjudicial policy determinations—suggest a functional approach, based on practical considerations of how government ought to work.Nowak & Rotunda, Constitutional Law, 8th ed. 2010, pp. 137–138; Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517 (1966). The final three factors—lack of respect for other branches, need for adherence to a political decision already made, and possibility of embarrassment—are based on the Court's prudential consideration against overexertion or aggrandizement.Bickel, The Least Dangerous Branch, 1962, pp. 23–28, 69–71; Bickel, The Supreme Court, 1960 Term: Foreword: The Passive Virtues, 75 Harv.L.Rev. 40, 46, 75 (1961); Finkelstein, Judicial Self–Limitation, 37 Harv.L.Rev. 338, 361 (1924); Finkelstein, Some Further Notes on Judicial Self–Limitation, 39 Harv.L.Rev. 221 (1926).
Other applications While the scope of the political question doctrine is still unsettled, its application has been mostly settled in a few decided areas. These areas are:
Guarantee Clause The Guarantee Clause of the US Constitution requires the federal government to "guarantee to every State in this Union a Republican Form of Government." The Supreme Court has ruled that this clause does not imply any set of "judicially manageable standards which a court could utilize independently in order to identify a State's lawful government." On this ground, the Court refused to identify the legitimate government of Rhode Island during the Dorr Rebellion in Luther v. Borden (1849).Note, Political Rights as Political Questions: The Paradox of Luther v. Borden, 100 Harv.L.Rev. 1125 (1987). Since then, the Court has consistently refused to resort to the Guarantee Clause as a constitutional source for invalidating state action, such as whether it is lawful for states to adopt laws through referendums.Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. 118, 32 S. Ct. 224 (1912)
Impeachment
Article I, Section 2 of the Constitution states that the House "shall have the sole power of Impeachment," and Article I, Section 3 provides that the "Senate shall have the sole Power to try all Impeachments."United States Constitution, Article I, Section 2-3. Since the Constitution placed the sole power of impeachment in two political bodies, it is qualified as a political question. As a result, neither the decision of the House to impeach, nor of the Senate to remove a President or any other official, can be appealed to any court.
Foreign policy, national security and war A court will not usually decide if a treaty has been terminated because "governmental action [...] must be regarded as of controlling importance." However, courts sometimes do rule on the issue. One example of this is native American tribes who have been officially terminated do not lose their treaty concessions without explicit text from Congress that the treaty is also abrogated.
In the case of bin Ali Jaber v. United States (2017), the plaintiffs filed a lawsuit under the Torture Victim Protection Act of 1991 after a 2012 US drone strike killed five civilians. The District of Columbia Court of Appeals dismissed the plaintiffs' claims on the basis that the "plaintiffs challenged the type of executive decision found nonjusticiable in El-Shifa Pharmaceutical Industries Co. v. United States (2010)." In El-Shifa, the court distinguished "between claims questioning the wisdom of military action, 'a policy choice . . . constitutionally committed' to the political branches, and 'legal issues such as whether the government had legal authority to act.'" Thus, the court held that the plaintiffs' argument required the court to make a policy decision.
Gerrymandering In cases like Davis v. Bandemer (1986), Vieth v. Jubelirer (2004), and Gill v. Whitford (2018), the Supreme Court had repeatedly treated partisan gerrymandering as judiciable, but it remained unable to agree on a majority standard for deciding such cases. In Rucho v. Common Cause (2019), the Supreme Court ultimately reversed itself, deciding that partisan gerrymandering was a purely political question.
Private military contractors In the case of Ghane v. Mid-South (January 16, 2014), the Mississippi Supreme Court held that a wrongful death action against a private military company by the family of a deceased United States Navy SEAL could proceed under Mississippi law since the plaintiff's claims did not present a non-justiciable political question under Baker v. Carr (1962).
Court cases US Supreme Court cases discussing the political question doctrine: Marbury v. Madison, – Origin of the phrase. Luther v. Borden, – Guarantee of a republican form of government is a political question. Coleman v. Miller, – Mode of amending federal Constitution is a political question. Colegrove v. Green, – Apportionment of congressional districts is a political question (Overruled by Baker v. Carr). Baker v. Carr, – Apportionment – whether of state or federal legislatures – is not a political question. Powell v. McCormack, – Congress' exclusion of members who have met the qualifications to serve is not a political question. Goldwater v. Carter, – Presidential authority to terminate treaties is a political question. INS v. Chadha, – Constitutionality of one house legislative veto is not a political question. Nixon v. United States, – Senate authority over impeachment is a political question. Rucho v. Common Cause, – Partisan gerrymandering is a political question.
International use France
French administrative law recognizes a narrow category of executive measures, known as actes de gouvernement, that are not subject to judicial review.Jully, A. (2019). Propos orthodoxes sur l'acte de gouvernement: (Note sous Conseil d'Etat, 17 avr. 2019, Société SADE, n°418679, Inédit au Lebon). Civitas Europa, 43(2), 165-171. doi:10.3917/civit.043.0165. The doctrine now covers two categories: measures concerning relations among constitutional authorities and measures inseparable from France's foreign relations. Examples include dissolving the National Assembly, resuming nuclear weapons testing, and suspending foreign aid.
Israel Israeli courts address political questions through the doctrine of justiciability. In Ressler v. Minister of Defence (1988), the Supreme Court of Israel, sitting as the High Court of Justice, distinguished between "normative justiciability", whether legal standards exist for deciding a dispute, and "institutional justiciability", whether a court is the appropriate institution to decide it. Justice Aharon Barak concluded that the political character of a dispute does not by itself place the legality of government action beyond judicial review. President Meir Shamgar, concurring, stated that a court may decline review where a dispute's political character predominates over its legal aspects.;
The Court has nonetheless applied institutional nonjusticiability in some cases. In Bargil v. Government of Israel (1993), it dismissed a general challenge to the government's settlement policy because the petition concerned policy within the authority of other branches, did not present a concrete dispute, and was predominantly political. The Court stressed that this did not bar review of concrete disputes concerning settlements.