The Political Question Doctrine: Justiciability and the Separation of Powers

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The Political Question Doctrine:

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The Political Question Doctrine: Justiciability and the Separation of Powers

Summary

Article III of the Constitution restricts the jurisdiction of federal courts to deciding actual “Cases”

and “Controversies.” The Supreme Court has articulated several “justiciability” doctrines

emanating from Article III that restrict when federal courts will adjudicate disputes. One

justiciability concept is the political question doctrine, according to which federal courts will not

adjudicate certain controversies because their resolution is more proper within the political

branches. Because of the potential implications for the separation of powers when courts decline

to adjudicate certain issues, application of the political question doctrine has sparked controversy.

Because there is no precise test for when a court should find a political question, however,

understanding exactly when the doctrine applies can be difficult.

The doctrine’s origins can be traced to Chief Justice Marshall’s opinion in Marbury v. Madison;

but its modern application stems from Baker v. Carr, which provides six independent factors that

can present political questions. These factors encompass both constitutional and prudential

considerations, but the Court has not clearly explained how they are to be applied. Further,

commentators have disagreed about the doctrine’s foundation: some see political questions as

limited to constitutional grants of authority to a coordinate branch of government, while others

see the doctrine as a tool for courts to avoid adjudicating an issue best resolved outside of the

judicial branch. Supreme Court case law after Baker fails to resolve the matter. The Court has

historically applied the doctrine in a small but disparate number of cases, without applying clear

rules for lower courts to follow. Possibly as a result of the murky nature of the doctrine, it has

regularly been invoked in lower federal courts in cases concerning foreign policy.

However, a recent Supreme Court case, Zivotofsky v. Clinton, appears to have narrowed the scope

of the political question doctrine. In a suit seeking the vindication of a statutory right in the

foreign affairs context, the Court reversed a lower court’s finding that the case posed a political

question. The Court explained that the proper analysis in such a situation begins not by asking

whether adjudicating the case would require review of the foreign policy decisions of the political

branches, but instead examining whether the plaintiff correctly interpreted the statute, followed

by determining whether the statute was constitutional.

The Court’s opinion appears to restrict the types of claims that can pose political questions, and

seems to encourage courts to decide more statutory claims on the merits. In turn, the decision

could lead to increased judicial resolution of controversies concerning the separation of powers,

rather than resolutions between the political branches themselves.

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Contents

Introduction...................................................................................................................................... 1

Origins of the Political Question Doctrine....................................................................................... 3

Modern Application of the Doctrine ................................................................................................ 5

Baker Factors ............................................................................................................................. 5

Foundation of the Political Question Doctrine .......................................................................... 6

Modern Supreme Court Case Law ............................................................................................ 9

Foreign Policy and Military Affairs .................................................................................... 9

Elections ............................................................................................................................ 12

Impeachment ..................................................................................................................... 13

Lower Courts’ Application............................................................................................................. 15

Foreign Policy Decisions ......................................................................................................... 15

Executive Discretion ............................................................................................................... 19

Narrowing the Scope of the Doctrine ............................................................................................ 20

Zivotofsky v. Clinton ............................................................................................................... 20

What’s Left of the Political Question Doctrine?...................................................................... 22

Implications on the Separation of Powers ............................................................................... 25

Contacts

Author Contact Information........................................................................................................... 25

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Introduction

Article III of the Constitution defines the proper scope of the federal courts’ jurisdiction as

limited to adjudicating “Cases” and “Controversies.”1 The Supreme Court has articulated several

legal doctrines emanating from Article III that restrict when federal courts will adjudicate

disputes, such as standing, ripeness, mootness, and the prohibition against issuing advisory

opinions.2 These “justiciability” doctrines are rooted in both constitutional and prudential

considerations and evince respect for the separation of powers, including the “proper—and

properly limited—role of the courts in a democratic society.”3 One justiciability concept is the

“political question” doctrine—according to which federal courts will not adjudicate certain

controversies because their resolution is more proper within the political branches.4

Because the doctrine implicates the separation of powers,5 application of the political question

doctrine has sparked controversy. For example, the doctrine has regularly been invoked in federal

courts in cases concerning foreign policy.6 Federal courts have declined to adjudicate a recent

challenge to the operation of the United States’ “kill list,”7 certain claims alleging presidential

violation of the war powers clause of the Constitution and the War Powers Resolution,8 and

U.S. CONST. art. III; see Massachusetts v. E.P.A., 549 U.S. 497, 516 (2007) (“Article III of the Constitution limits

federal-court jurisdiction to ‘Cases’ and ‘Controversies.’”).

See Allen v. Wright, 468 U.S. 737, 750 (1984) (“All of the doctrines that cluster about Article III—not only standing

but mootness, ripeness, political question, and the like—relate in part, and in different though overlapping ways, to an

idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential

limits to the powers of an unelected, unrepresentative judiciary in our kind of government.”) (quoting Vander Jagt v.

O'Neill, 699 F.2d 1166, 1178–1179 (D.C. Cir. 1983) (Bork, J., concurring)).

Warth v. Seldin, 422 U.S. 490, 498 (1975).

See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (“[T]he concept of justiciability,

which expresses the jurisdictional limitations imposed upon federal courts by the ‘case or controversy’ requirement of

Art. III, embodies both the standing and political question doctrines.”). But see ERWIN CHEMERINSKY, CONSTITUTIONAL

LAW: PRINCIPLES AND POLICIES 134 (2006) (“Unlike the other justiciability doctrines, the political question doctrine is

not derived from Article III’s limitation of judicial power to “cases” and “controversies.”).

See Baker v. Carr, 369 U.S. 186, 210 (1962) (“The nonjusticiability of a political question is primarily a function of

the separation of powers.”).

See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 (D.C. Cir. 1984) (Bork. J., concurring) (“Questions

touching on the foreign relations of the United States make up what is likely the largest class of questions to which the

political question doctrine has been applied.”).

Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 52 (D.D.C. 2010).

See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir.1985) (dismissing a claim brought by Members of

Congress arguing that President Reagan’s aid to Contras amounted to waging war in violation of the Constitution’s war

powers clause on political question grounds); Crockett v. Reagan, 720 F.2d 1355, 1356-57 (D.C.Cir.1983) (affirming

district court’s dismissal of suit brought by members of Congress challenging the presence of military advisors in ElSalvador as a violation of the War Powers Resolution and the war powers clause of the Constitution on political

question grounds); Ange v. Bush, 752 F. Supp. 509, 514 (D.D.C.1990) (challenge to President George H.W. Bush’s

deployment order to the Persian Gulf as violating the War Powers Resolution and the war powers clause of the

Constitution posed a political question); see also Campbell v. Clinton, 203 F.3d 19, 24-28 (D.C. Cir. 2000) (Silberman,

J., concurring) (concurring in order to dismiss claims brought by Congressman alleging President Clinton’s order of

airstrikes in Yugoslavia constituted violation of the war powers clause of the Constitution and the War Powers

Resolution because the case presented a political question). But see Campbell v. Clinton, 203 F.3d 19, 37–41

(D.C.Cir.2000) (Tatel, J., concurring) (political question doctrine not implicated by a challenge to President Clinton’s

ordering airstrikes in Yugoslavia); Berk v. Laird, 429 F.2d 302, 306 (2d Cir.1970) (indicating that a challenge to the

Vietnam War did not automatically implicate a political question).

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claims whose adjudication might harm the country’s foreign policy interests.9 Some

commentators have identified such cases as reflecting judicial deference to actions of the

executive branch in the area of national security; deference, it may be argued, that occurs at the

expense of Congress, because courts invoking the doctrine sometimes effectively decline to

enforce a congressional statute.10

As a preliminary matter, it is important to distinguish the political question doctrine from cases

presenting political issues. Courts adjudicate controversies with political ramifications on a

regular basis. For example, the Supreme Court has held that certain electoral processes deny

citizens the right to vote based on their skin color,11 and has upheld a subpoena directed against

the President of the United States.12 Both decisions necessarily had political consequences.

Instead, the political question doctrine applies to issues that courts determine are best resolved

within the politically accountable branches of government—Congress or the executive branch.

Understanding exactly when the doctrine applies, however, can be difficult.13 The “precise

contours of the doctrine are murky and unsettled,”14 without a clear consensus among the

members of the Supreme Court or academia.15 The Supreme Court itself has noted that the

political question doctrine has caused “[m]uch confusion”; and determining if it applies to a given

case requires “a delicate exercise in constitutional interpretation.”16

In order to illuminate the circumstances in which courts find cases to present nonjusticiable

political questions, this report will examine the origins of the political question doctrine and

modern Supreme Court case law on the matter. In addition, it will explore a few significant

applications of the doctrine in the lower federal courts. Finally, this report will unpack a recent

See, e.g., Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005); see also Goldwater v. Carter, 444 U.S. 996

(1979).

See Constitutional Law—Political Question Doctrine—D.C. Circuit Holds That Government Officials’ Potentially

Defamatory Allegations Regarding Plaintiffs’ Terrorist Ties Are Protected by Political Question Doctrine., 124 HARV.

L. REV. 640, 640 (2010) (noting “a pattern of increasing deference to the executive branch, whereby the D.C. Circuit in

particular has expanded executive power at the expense of the legislature.”); Note, The Political Question Doctrine,

Executive Deference, and Foreign Relations, 122 Harv. L. Rev. 1193, 1196 (2009); see generally Stephen I. Vladeck,

The New National Security Canon, 61 Am. U. L. Rev. 1295, 1321-25 (2012) (identifying a “new national security

canon” following 9/11 whereby federal courts invoke various theories, including the political question doctrine, to deny

relief in cases implicating national security).

See Terry v. Adams, 345 U.S. 461 (1953).

See U.S. v. Nixon, 418 U.S. 683 (1974).

See Jack Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. Colo. L. Rev. 1395, 140103 (1999) (noting an “apparent lack of principle and consistency” in application of the political question doctrine in

cases implicating foreign policy); THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS 8 (1992).

See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (Bork. J., concurring); Doe v. Bush,

323 F.3d 133, 140 (1st Cir. 2003) (“The political question doctrine ... is a famously murky one.”).

See Tel-Oren,726 F.2d at 803 n.8 (Bork, J., concurring) (“That the contours of the doctrine are murky and unsettled

is shown by the lack of consensus about its meaning among the members of the Supreme Court and among scholars.”)

(citations omitted); Rebecca L. Brown, When Political Questions Affect Individual Rights: The Other Nixon v. United

States, 1993 Sup. Ct. Rev. 125, 152 (1993); see infra “Narrowing the Scope of the Doctrine.” Some commentators have

criticized the very existence of the doctrine, see e.g., ERWIN CHEMERINSKY, INTERPRETING THE CONSTITUTION 99-100

(1987); Martin Redish, Judicial Review and the Political Question, 79 Nw. U.L. Rev. 1031 (1985); and another has

questioned whether the doctrine actually exists, see Louis Henkin, Is There a “Political Question” Doctrine?, 85 Yale

L.J. 597 (1976).

Baker, 369 U.S. at 211.

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Supreme Court case rejecting application of the doctrine that may have significant implications

for the political question doctrine in the future.17

Origins of the Political Question Doctrine

The origins of the political question doctrine can be traced back to Chief Justice Marshall’s

opinion in Marbury v. Madison.18 Chief Justice Marshall, in addressing whether the judiciary

could issue a writ of mandamus against an executive branch official, distinguished between

individual rights dependent on executive branch legal duties on the one hand, and political

matters left to presidential discretion on the other.19 While the former are justiciable, the latter

might not be.20 Justice Marshall explained that the Constitution entrusted a scope of discretion in

some areas to the “executive departments alone”;21 but “whether the legality of an act of the head

of a department be examinable in a court of justice or not, must always depend on the nature of

that act.”22 “[T]he President is invested with certain important political powers,” in which he—

and those officers he appoints to carry out his will—are not accountable to the judicial branch.23

These political powers “respect the nation, not individual rights, and being entrusted to the

executive, the decision of the executive is conclusive.”24 Accordingly,

The conclusion from this reasoning is, that where the heads of departments are the political

or confidential agents of the executive, merely to execute the will of the President, or rather

to act in cases in which the executive possesses a constitutional or legal discretion, nothing

can be more perfectly clear than that their acts are only politically examinable. But where a

specific duty is assigned by law, and individual rights depend upon the performance of that

duty, it seems equally clear that the individual who considers himself injured, has a right to

resort to the laws of his country for a remedy.25

The definition of a political question given by Chief Justice Marshall appears to include only

those matters where the President is entrusted by the Constitution with unrestricted discretion,

such as choosing who to nominate to the Senate for confirmation as executive branch officers,26

but not matters that implicate individual rights.27

See Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).

5 U.S. 137 (1803). Hints of the political question doctrine also appear in the Federalist Papers. See The Federalist

No. 78 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“If it be said that the legislative body are themselves the

constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other

departments it may be answered that this cannot be the natural presumption where it is not to be collected from any

particular provisions in the Constitution.”); Rachel E. Barkow, More Supreme Than Court? The Fall of the Political

Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 246 (2002); Robert J. Pushaw, Jr.,

Justiciability and the Separation of Powers: A Neo-Federalist Approach, 81 Cornell L. Rev. 393, 424 (1996).

Marbury, 5 U.S. at 163-170.

Id.

Id. at 164.

Id. at 165.

Id. at 165-66.

Id. at 166.

Id.

Id. at 167.

See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW, PRINCIPLES AND POLICIES 129-130 (2006).

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Nonetheless, the scope of what constitutes a political question appears to have broadened since

Marbury v. Madison. Courts have found political questions in areas not solely committed to the

President’s discretion,28 including when individual rights are implicated.29 The beginning of this

shift can be seen in the Supreme Court’s next “classic representation of the early political

question doctrine.”30 In Luther v. Borden, the Court declined to adjudicate a challenge to the

Rhode Island charter government31 under the republican form of government clause in Article IV,

Section 4 of the U.S. Constitution.32 At the time of the Dorr Rebellion in the 1840s, Rhode Island

had not adopted a state constitution. Instead, it operated under a charter established by King

Charles II in 1663.33 The charter government was challenged as violating the Guarantee Clause,

which provides that the “United States shall guarantee to every State in this Union a Republican

form of government.”34 The Court held that the challenge was a political question, explaining that

under the Guarantee Clause,

it rests with Congress to decide what government is the established one in a State. For as the

United States guarantee to each State a republican government, Congress must necessarily

decide what government is established in the State before it can determine whether it is

republican or not.... And its decision is binding on every other department of the

government, and could not be questioned in a judicial tribunal.35

Because the determination of which entity was the lawful state government was committed to

another branch of government—Congress—the Court refused to provide its own interpretation.

As noted above, while Marbury v. Madison identified some matters entrusted to the executive

branch as political questions, at least by the time Luther v. Borden was decided, certain matters

committed to the discretion of Congress could also pose political questions.

In addition, the Court in Luther v. Borden also noted certain prudential considerations that

weighed against judicial resolution of the case, such as the chaos that would ensue if the Court

invalidated a state’s government.36 The Court has subsequently characterized the case as resting in

part on the “lack of criteria by which a court” could make the determination;37 and these

prudential concerns were later repeated by the Court in a subsequent challenge to a state law

under the Guarantee Clause.38

See, e.g., Nixon v. United States, 506 U.S. 224 (1993).

See, e.g., Luther v. Borden, 48 U.S. 1 (1849).

Martin Redish, Judicial Review and the Political Question, 79 Nw. U.L. Rev. 1031, 1036 (1985).

48 U.S. 1, 10 (1849).

U.S. CONST. art. IV, §4.

Luther, 48 U.S. at 3.

U.S. CONST. art. IV, §4.

Luther, 48 U.S. at 42.

Id. at 39-40.

See Baker v. Carr, 369 U.S. 186, 222-23 (1962).

Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 141-42 (1912); see Barkow, supra note 18, at

253-58.

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Modern Application of the Doctrine

Baker Factors

Following Luther v. Borden, the Court dismissed challenges to state or congressional action under

the Guarantee Clause on a number of occasions,39 including challenges to state congressional

districting.40 Nevertheless, in the Court’s “oft-quoted”41 modern encapsulation of the political

question doctrine, Baker v. Carr, the Court explained that challenges to election districts could be

brought under the Equal Protection Clause.42 In that case, a challenge was brought to a state’s

legislative apportionment of election districts, which, the plaintiffs claimed, resulted in an

“impairment of their votes” through a “classification [that] disfavors the voters in the counties in

which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis

voters in irrationally favored counties.”43 The Court distinguished claims brought under the

Guarantee Clause from claims under the Equal Protection Clause.44 Cases presenting political

questions—including the Guarantee Clause cases—implicated the relationship between the

“judiciary and the coordinate branches of the Federal Government, and not the judiciary’s

relationship to the states.”45 In addition, while the Guarantee Clause did not contain “judicially

manageable standards which a court could utilize independently in order to identify a State’s

lawful government,”46 standards “under the Equal Protection Clause are well developed and

familiar.”47 The Court thus ruled that the Equal Protection claim was justiciable,48 and outlined

six matters that could present political questions in other circumstances:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political

department; or [2] a lack of judicially discoverable and manageable standards for resolving

it; or [3] the impossibility of deciding without an initial policy determination of a kind

clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking

independent resolution without expressing lack of the respect due coordinate branches of

government; or [5] an unusual need for unquestioning adherence to a political decision

already made; or [6] the potentiality of embarrassment from multifarious pronouncements by

various departments on one question.49

See, e.g., Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912); Taylor & Marshall v. Beckham,

178 U.S. 548 (1900); State of Ga. v. Stanton, 73 U.S. 50 (1867); see also Baker, U.S. at 223-24 (collecting cases). But

see New York v. United States, 505 U.S. 144, 185 (1992) (“More recently, the Court has suggested that perhaps not all

claims under the Guarantee Clause present nonjusticiable political questions. Contemporary commentators have

likewise suggested that courts should address the merits of such claims, at least in some circumstances. ... We need not

resolve this difficult question today.”) (citations omitted); Reynolds v. Sims, 377 U. S. 533, 582 (1964) (“[S]ome

questions raised under the Guarantee Clause are nonjusticiable”).

See Colegrove v. Green, 328 U.S. 549 (1946).

See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW, PRINCIPLES AND POLICIES 131 (2006).

See Baker v. Carr, 369 U.S. 186 (1962).

Id. at 207-208.

Id. at 226.

Id. at 211.

Id. at 223.

Id. at 226.

Id. at 237.

Id. at 217.

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The Court did not, however, explain precisely how these factors were to be applied in future

cases, nor did it describe the relative weight of each factor; although in a later case applying the

doctrine, a plurality of the Court explained that they “are probably listed in descending order of

both importance and clarity.”50 In addition, the Court in Baker noted that cases implicating

foreign policy could frequently pose political questions,51 and explained that in such cases the

Court engages in a “a discriminating analysis of the particular question posed, in terms of the

history of its management by the political branches, of its susceptibility to judicial handling in the

light of its nature and posture in the specific case, and of the possible consequences of judicial

action.”52

Foundation of the Political Question Doctrine

While the Court in Baker delineated what factors were relevant in determining whether a case

posed a political question, the Court did not explicitly identify the doctrine’s foundation. It

characterized the political question doctrine as “essentially a function of the separation of

powers”; but the factors it listed nonetheless appear to include both constitutional53 and

prudential54 considerations.55 It is thus unclear whether the basis for the political question doctrine

emanates solely from the Constitution, or if it also finds a foundation in prudential considerations

about the proper role of the judiciary. Commentators have disagreed on this question, reflecting a

divergence in how the doctrine is conceived and the situations where it is thought to be

applicable. At least two major theories about the proper role of courts vis-a-vis the other branches

of government can be discerned in the doctrine.56

According to one such theory, in what has been called the “classical” version of the doctrine,57

political questions emanate from the Constitution itself. Courts have a duty to adjudicate cases

properly presented before them, which includes interpreting the Constitution when appropriate,

Vieth v. Jubelirer, 541 U.S. 267, 277 (2004).

Baker, 369 U.S. at 211.

Id. at 211-212.

See id. (the first factor is a “textually demonstrable constitutional commitment of the issue to a coordinate political

department”).

See id. (the third factor is “the impossibility of deciding without an initial policy determination of a kind clearly for

nonjudicial discretion”); id. (the third and fourth factors are “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”);

See Nixon v. United States, 506 U.S. 224, 252-53 (1993) (Souter, J., concurring) (“[T]he political question doctrine

is ‘essentially a function of the separation of powers,’ existing to restrain courts ‘from inappropriate interference in the

business of the other branches of Government,’ and deriving in large part from prudential concerns about the respect

we owe the political departments.”) (quoting Baker, 369 U.S. at 217 and United States v. Munoz-Flores, 495 U.S. 385,

394 (1990)) (internal citations omitted); Goldwater v. Carter, 444 U.S. 996, 1000 (1979) (J. Powell, concurring)

(“[T]he political-question doctrine rests in part on prudential concerns calling for mutual respect among the three

branches of Government. Thus, the Judicial Branch should avoid ‘the potentiality of embarrassment [that would result]

from multifarious pronouncements by various departments on one question.’ Similarly, the doctrine restrains judicial

action where there is an ‘unusual need for unquestioning adherence to a political decision already made.’”) (citing

Baker, 369 U.S. at 217) (brackets in original).

Compare Fritz W. Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L. J. 517,

566-83 (1966) (arguing for a third, “functional” theory of the doctrine based on various factors the court has used to

find political questions) with Martin H. Redish, Judicial Review and the “Political Question,” 79 Nw. U. L. Rev. 1031,

1043 (1985) (characterizing the functional theory as a “subset” of the prudential theory).

See Martin H. Redish, Judicial Review and the “Political Question,” 79 Nw. U. L. Rev. 1031, 1039 (1985).

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and may not sidestep this role for prudential reasons.58 Instead, a political question only arises

when the Constitution itself clearly commits the resolution of a question to another branch of

government.59 In determining whether the Constitution does so, the theory goes, the judiciary

does not abdicate its duty to interpret the Constitution, but interprets it as assigning discretion

over an issue to another branch.60 The judiciary thus grounds its decisions on principle, rather

than on an ad hoc measuring of the expediency of deciding a particular case one way or the

other.61

In contrast, another theory, famously explained by Alexander Bickel in his enunciation of the

“passive virtues” of the judiciary, understands the political question doctrine to permit courts to

decline to adjudicate a case for prudential reasons as well.62 Writing in the aftermath of Brown v.

Board of Education and the significant pushback that decision engendered in the South, Bickel

sought to preserve the legitimacy of an unelected judicial branch.63 On the one hand, when courts

declare legislation or executive branch actions to be unconstitutional, Bickel argued, they

frustrate the will of the people.64 This “countermajoritarian difficulty” posed a significant

problem because the judiciary’s power arises from its perceived legitimacy in adjudicating cases,

rather than from passing or enforcing laws.65 At some point, continued judicial invalidation of

public will risks losing that legitimacy. But at the same time, judicial rulings upholding the

constitutionality of legislation also risk legitimating unprincipled or harmful policies. Bickel

noted that “[t]he Court’s prestige, the spell it casts as a symbol, enable it to entrench and solidify

measures.... The Court, regardless of what it intends, can generate consent and may impart

permanence.”66 Upholding a statute or government practice as constitutional, while usually not

intended to function as an endorsement on policy grounds, could nevertheless be perceived as

such by the public.

Accordingly, rather than risk losing legitimacy by invalidating a law or entrenching a poorly

conceived policy choice by upholding it, a court may exercise the passive virtues by refraining

from adjudicating the case at all.67 And when it does so, Bickel noted, the judiciary often sparks

and participates in a dialogue with the other branches of government and the public which helps

develop the issue further.68 One method Bickel identified of practicing the passive virtues is by

See Fritz W. Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L. J. 517, 517-518

(1966).

See Herbert Weschler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 6-10 (1959).

Id. at 8-10.

Id. at 14.

Alexander M. Bickel, The Supreme Court 1960 Term Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 74-80

(1961); see CRS Report R43706, The Doctrine of Constitutional Avoidance: A Legal Overview, by (name redacted).

See Floyd Abrams, Online Alexander Bickel Symposium: On Rereading The Least Dangerous Branch, SCOTUSblog

(August 15, 2012, 10:25 AM), http://www.scotusblog.com/2012/08/online-alexander-bickel-symposium-on-rereadingthe-least-dangerous-branch/.

ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-17

(1962).

Id. at 16.

Alexander M. Bickel, The Supreme Court 1960 Term Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 48-59

(1961).

Id. at 50-51.

Id.

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invoking the political question doctrine to decline to adjudicate a case.69 Bickel argued that the

political question doctrine was founded on

the Court’s sense of lack of capacity, compounded in unequal parts of (a) the strangeness of

the issue and its intractability to principled resolution; (b) the sheer momentousness of it,

which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial

judgment will be ignored, as that perhaps it should but will not be; (d) finally (‘in a mature

democracy’), the inner vulnerability, the self-doubt of an institution which is electorally

irresponsible and has no earth to draw strength from.70

Rather than issuing rulings that outstripped the mood and temper of the country, a court could

invoke the passive virtues, like the political question doctrine, to restrict itself to “declar[ing] as

law only such principles as will—in time, but in a rather immediate foreseeable future—gain ...

widespread acceptance.”71 By “stay[ing] its hand” and declining to adjudicate certain issues, the

judiciary could thus allow the political branches to hash out issues over time—“elicit[ing] the

correct answers to certain prudential questions that ... lie in the path of ultimate issues of

principle.”72

It bears mentioning that the line between these two theories may not be precise. For example, the

prudential considerations have been described by the Ninth Circuit Court of Appeals as

examinations of the “consequences of a court asserting its jurisdiction,” which, due to the “broad

strokes” of the “Constitution’s grants of authority,” can “assist [courts] in the difficult task of

discerning which cases the Constitution forbids them from hearing.”73 According to this

understanding of the doctrine, Baker’s prudential factors work to elucidate what the Constitution

in fact requires, a conception arguably distinct from preserving the judiciary’s legitimacy. In

addition, courts applying the doctrine sometimes mention both prudential and constitutional

factors without clear lines of differentiation, with the “analyses often collapsing into one

another.”74

As seen below, the Supreme Court has sometimes invoked both constitutional and prudential

factors in finding a case to be a political question, without clearly stating which factors are

dispositive.75 The Court has also noted the interdependence of the Baker factors, explaining that

whether an issue is textually committed to another branch of government “is not completely

separate” from whether there exist judicially manageable standards to adjudicate the issue; a lack

of standards can “strengthen the conclusion that there is a textually demonstrable commitment to

a coordinate branch.”76

Cf. Scharpf, supra note 58, at 537-39 (expressing agreement with Bickel’s basic theory but criticizing the political

question doctrine as a means to achieving the end of legitimacy).

ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 184 (1962).

Id. at 239 (quotations omitted); see Sweezy v. New Hampshire, 354 U.S. 234, 255, 266-67 (1957).

Id. at 70.

Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir. 2007).

Alperin v. Vatican Bank, 410 F.3d 532, 544 (9th Cir. 2005).

See e.g., Nixon v. U.S., 506 U.S. 224, 236 (1993) (“In addition to the textual commitment argument, we are

persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability.”).

Id. at 228-29.

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Modern Supreme Court Case Law

Since the articulation of the Baker factors, a majority of the Supreme Court has ruled that cases

were nonjusticiable under the political question doctrine on two occasions. In two others, a

plurality of the Court determined that a case should be dismissed on this basis, and the Court has

hinted at its applicability in others. As the Court in Baker described however, the “attributes” of

the political question doctrine “in various settings, diverge, combine, appear, and disappear in

seeming disorderliness,”77 and the Baker factors themselves can overlap. Cases posing a political

question cannot be identified by “semantic cataloguing,”78 or by identifying a comprehensive

rule.79 Instead, whether a case raises a political question must be determined on a “case-by-case”

basis.80Accordingly, this report will examine the Supreme Court’s application of the doctrine in

particular cases since the elucidation of the Baker factors. These cases have addressed areas

ranging from foreign policy matters to the impeachment process.

Foreign Policy and Military Affairs

Prior to Baker v. Carr, the Court had found that, inter alia, the determination of when hostilities

begin,81 when a state of war concludes,82 the recognition of Indian tribes,83 and the recognition of

foreign governments84 are questions vested in the political branches. After Baker’s articulation of

the factors relevant to the political question doctrine, in Goldwater v. Carter, a plurality of the

Court held that a challenge brought by Members of Congress against President Carter’s rescission

of a treaty presented a nonjusticiable political question.85 The Court first analogized to Coleman v.

Miller, decided in 1939, where the Court found that the “efficacy of ratifications by state

legislatures” was a political question.86 In that case, state legislators challenged the ratification of

the Child Labor Amendment by the state senate on the grounds that it had earlier been rejected.87

The Court noted in Coleman that Article V of the Constitution spoke only to ratification, but was

silent concerning rejection.88 Accordingly, Congress—not the courts—“has the final

determination of the question whether by lapse of time its proposal of the amendment had lost its

Baker, 369 U.S. at 210.

Id. at 217.

Id. at 215.

Id. at 211.

See Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827).

See Commercial Trust Co. v. Miller, 262 U.S. 51 (1923); Ludecke v. Watkins, 335 U.S. 160, 168-69 (1948) (“‘The

state of war’ may be terminated by treaty or legislation or Presidential proclamation. Whatever the modes, its

termination is a political act. Whether and when it would be open to this Court to find that a war though merely

formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not

compelled.”).

See United States v. Sandoval, 231 U.S. 28 (1913).

See Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (“Who is the sovereign, de jure or de facto, of a territory

is not a judicial, but is a political question, the determination of which by the legislative and executive departments of

any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government.”)

(quoting Jones v. United States, 137 U.S. 202, 212 (1890)) (quotations omitted).

Goldwater v. Carter, 444 U.S. 996, 1004 (1979).

307 U.S. 433, 450 (1939).

Id. at 436-37.

Id. at 450.

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vitality prior to the required ratifications.”89 Applying this reasoning to the case at hand, the

plurality in Goldwater found that while the Constitution explains the Senate’s role in ratifying

treaties, it is silent as to a treaty’s “abrogation.”90 As in Coleman, the plurality explained, the

“absence of any constitutional provision governing the termination of a treaty” indicated that the

question was not for the courts to decide.91

The Court continued by distinguishing the matter from the Steel Seizure case, where the Court

had invalidated presidential action.92 The Court noted two important differences. First, whereas

the plaintiffs in the Steel Seizure case were private litigants, here the Court was “asked to settle a

dispute between two coequal branches of our Government, each of which has resources available

to protect and assert its interests” outside of the courts.93 Second, while the actions challenged in

the Steel Seizure case had direct domestic effect, the “effect of this action ... is entirely external to

the United States, and [falls] within the category of foreign affairs.”94 Accordingly, the Court

dismissed the case as presenting a nonjusticiable political question.

In a concurring opinion, however, Justice Powell found the case to be justiciable, but not ripe for

judicial review because Congress had not directly “confront[ed] the President.”95 He noted that

the Senate had considered, but did not pass, a resolution declaring the necessity of Senate

approval for the termination of a treaty.96

The Court has also indicated that judicial relief may be barred in certain cases where the

executive branch determines that adjudication of the matter would harm U.S. foreign policy

interests. In Sosa v. Alvarez-Machain, the Court noted that “the availability of relief in federal

court for violations of customary international law” under the Alien Tort Statute might be limited

by a “policy of case-specific deference to the political branches.”97 The Court pointed to several

class actions in the lower courts seeking damages from corporations that allegedly aided the

former apartheid regime of South Africa.98 The United States had entered a Statement of Interest

urging dismissal of those cases on foreign policy grounds. Without ruling on the issue, the Court

noted that “[i]n such cases, there is a strong argument that federal courts should give serious

weight to the Executive Branch’s view of the case’s impact on foreign policy.”99 The Court has

also recognized the possibility of similar concerns with regard to specific claims brought under

the Foreign Sovereign Immunities Act.100 Lower courts have sometimes cited these cases to find a

Id. at 456. Justice Black wrote a concurring opinion, joined by a plurality of the Court, which concluded that the

entire amendment process was immune from judicial review. See id. at 459 (Black, J., concurring) (“Congress has sole

and complete control over the amending process, subject to no judicial review, the views of any court upon this process

cannot be binding upon Congress.”).

Goldwater, 444 U.S. at 1003.

Id.

Id. at 537-38 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).

Id. at 1004.

Id. (citations omitted) (brackets in original).

Id. at 998-1002 (J. Powell, concurring).

Id.

Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004).

Id.

100

See Republic of Austria v. Altmann, 541 U.S. 677, 702 (2004) (explaining that in the context of claims under the

Foreign Sovereign Immunities Act, “should the State Department choose to express its opinion on the implications of

(continued...)

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political question when claims are brought whose adjudication might harm U.S. foreign policy

interests.101 However, the Court’s mention of “deference” to the political branches does not

necessarily imply that a political question is present; courts can grant deference in the

interpretation of a statute to the executive branch without declining to adjudicate a case at all.102

Similarly, the political question doctrine has also been invoked by the Court in a challenge to

military training procedures. In Gilligan v. Morgan, students of Kent State University who were

present when the National Guard was called to campus to quell civil disorder—resulting in the

deaths of several students—brought a claim for injunctive relief to restrain the officers of the

National Guard from future violation of their constitutional rights.103 The plaintiffs sought for the

district court to “establish standards for the training, kind of weapons and scope and kind of

orders to control the actions of the National Guard,” as well as continuing judicial supervision to

ensure compliance with the court’s order.104 In finding the matter to be a nonjusticiable political

question, the Supreme Court emphasized the important separation of powers concerns at issue. It

noted that Article I of the Constitution vests Congress with authority over the militia (with

specific powers reserved for the states).105 Requiring judicial review of the National Guard’s

training procedures, and exercising judicial supervision thereafter, would “embrace critical areas

of responsibility vested by the Constitution in the Legislative and Executive Branches of

Government.”106 Judicial intrusion into “substantive political judgments entrusted expressly to the

coordinate branches of government,” the Court reasoned, was inappropriate.107 The Court

explained that

[i]t would be difficult to think of a clearer example of the type of governmental action that

was intended by the Constitution to be left to the political branches directly responsible—as

the Judicial Branch is not—to the electoral process. Moreover, it is difficult to conceive of an

area of governmental activity in which the courts have less competence. The complex subtle,

and professional decisions as to the composition, training, equipping, and control of a

military force are essentially professional military judgments, subject always to civilian

control of the Legislative and Executive Branches. The ultimate responsibility for these

decisions is appropriately vested in branches of the government which are periodically

subject to electoral accountability. It is this power of oversight and control of military force

by elected representatives and officials which underlies our entire constitutional system.108

(...continued)

exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be

entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.”)

(footnotes omitted) (emphasis in original).

101

See, e.g., Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005).

102

See, e.g., Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (“We have long

recognized that considerable weight should be accorded to an executive department’s construction of a statutory

scheme it is entrusted to administer.”).

103

413 U.S. 1, 3-4 (1973).

104

Id. at 4.

105

Id. at 6-7.

106

Id. at 7.

107

Id. at 11.

108

Id. at 10.

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As discussed more fully below, lower federal courts have often dismissed claims implicating

foreign policy as presenting nonjusticiable political questions.109 However, the Supreme Court has

cautioned that a case does not present a political question simply because it touches upon foreign

affairs. In Japan Whaling Association v. American Cetacean Society, the Court examined whether

specific legislation required the Secretary of Commerce to certify to the President that the

whaling practices of Japan “diminish the effectiveness”110 of the International Convention for the

Regulation of Whaling.111 The Court ruled that the case did not raise a political question,

explaining that the interpretation of treaties, executive agreements, and legislation was a proper

judicial function.112 Determining whether the Secretary was required to make a certification under

the statute was a “purely legal question of statutory interpretation.”113 The Court noted the

“premier role which both Congress and the Executive play” in foreign affairs, but concluded that

“under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we

cannot shirk this responsibility merely because our decision may have significant political

overtones.”114

Elections

Challenges to partisan gerrymandering may also pose a nonjusticiable political question.115 In

Vieth v. Jubelirer, the plaintiffs brought a challenge to the electoral map drawn by a state

assembly, alleging that the map “constitutes a political gerrymander.”116 A plurality of the Court

ruled that claims alleging political gerrymandering were nonjusticiable political questions

because there were no “judicially discernable and manageable standards” to adjudicate them.117 In

doing so, the Court overruled its decision 18 years earlier in Davis v. Bandemer,118 in which the

Court had ruled that such claims were justiciable.119 Bandemer, the plurality found, failed to

articulate a “judicially discernable standard[]” to decide a political gerrymandering case, and

since then the lower courts that applied Bandemer had been unable to as well.120 The plurality

examined the various alternative standards proposed by the plaintiffs and the dissenting Justices,

but found them all to be lacking.121 One problem, the Court explained, was that “[p]olitical

affiliation is not an immutable characteristic,” which means it is “impossible to assess the effects

of partisan gerrymandering, to fashion a standard for evaluating a violation, and finally to craft a

remedy.”122 Another was “ascertaining whether an entire statewide plan is motivated by political

109

See infra “Foreign Policy Decisions.”

478 U.S. 221, 223 (1986).

111

See International Convention for the Regulation of Whaling, December 2, 1946, 62 Stat. 1716, T.I.A.S. No. 1849

(entered into force November 10, 1948).

112

Id. at 230.

113

Id.

114

Id.

115

See Vieth v. Jubelirer, 541 U.S. 267, 281 (2004).

116

Id. at 271.

117

Id. at 281.

118

478 U.S. 109 (1986).

119

Vieth, 541 U.S. at 305-306.

120

Id. at 282-283.

121

Id. at 284-305.

122

Id. at 287.

110

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or neutral justifications.”123 Justice Kennedy, on the other hand, wrote a concurring opinion which

agreed that this case should be dismissed, but expressly left open the question whether judicial

standards could be developed in the future that would permit such a case to be adjudicated.124

Disputes concerning the operations of political parties may also present a political question. In

O’Brien v. Brown, the Court stayed an appellate court’s decision which found that the actions of

the Credentials Committee of the Democratic National Convention of 1972 violated the

Constitution.125 The Credentials Committee recommended that certain delegates to the

Convention be unseated, and the Court reviewed the appellate court’s order three days before the

seating of delegates was to be determined.126 The Court did not expressly invoke the political

question doctrine, but cited Luther v. Borden and noted that no federal court had ever

“interject[ed] itself” into the inner workings of political conventions due to the “relationships of

great delicacy that are essentially political in nature.”127

Impeachment

The Court has also declined to review the impeachment process. In Nixon v. United States, a

former federal judge had been convicted on two counts of making false statements before a grand

jury and was sent to prison.128 He refused, however, to resign and continued to receive his salary

as a judge while in prison. The House of Representatives adopted articles of impeachment against

the judge and presented the Senate with the articles.129 The Senate invoked Impeachment Rule XI,

a Senate procedural rule which permits a committee to take evidence and testimony. After the

committee completed its proceedings, it presented the full Senate with a transcript and report.

Both sides then presented briefs to the full Senate and delivered arguments, and the Senate then

voted to convict and remove him from office.130 The judge thereafter brought a suit arguing that

the use of a committee to take evidence violated the Constitution’s provision that the Senate “try”

all impeachments.131

The Court noted that the Constitution grants “the sole Power”132 to try impeachments “in the

Senate and nowhere else”;133 and the word “try” “lacks sufficient precision to afford any

judicially manageable standard of review of the Senate’s actions.”134 This constitutional grant of

sole authority, the Court reasoned, meant that the “Senate alone shall have authority to determine

123

Id. at 300; see id. at 288-90.

Id. at 306-17. Subsequently, the Court dismissed another challenge to gerrymandering in League of United Latin

American Citizens v. Perry, 548 U.S. 399 (2006). In a fractured opinion, Justice Kennedy’s opinion did not revisit the

holding in Bandemer, but found that the challengers had not provided a “reliable standard,” id. at 423, to use to

“determin[e] whether a partisan gerrymander violates the Constitution.” Id. at 414.

125

409 U.S. 1 (1972).

126

Id. at 2.

127

Id. at 4.

128

506 U.S. 224, 226-27 (1993).

129

Id. at 226-27.

130

Id. at 227-28.

131

Id. at 228.

132

U.S. CONST. Art. I. s 3, cl. 6.

133

Nixon, 506 U.S. at 229.

134

Id.

124

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whether an individual should be acquitted or convicted.”135 In addition, because impeachment

functions as the “only check on the Judicial Branch by the Legislature,”136 the Court noted the

important separation of powers concerns that would be implicated if the “final reviewing

authority with respect to impeachments [was placed] in the hands of the same body that the

impeachment process is meant to regulate.”137 Further, the Court explained that two of Baker’s

prudential considerations, “the lack of finality and the difficulty of fashioning relief counsel[ed]

against justiciability.”138 Judicial review of impeachments could create considerable political

uncertainty, if, for example, an impeached President sued for judicial review.139

The Court was careful to distinguish the situation from Powell v. McMormack, a case also

involving congressional procedure where the Court declined to apply the political question

doctrine.140 That case involved a challenge brought by a member-elect of the House of

Representatives who had been excluded from his seat pursuant to a House Resolution.141 The

precise issue in Powell was whether the judiciary could review a congressional decision that the

plaintiff was “unqualified” to take his seat.142 That determination had turned, the Court explained,

“on whether the Constitution committed authority to the House to judge its Members’

qualifications, and if so, the extent of that commitment.”143 The Court noted that while Article I,

Section 5 does provide that Congress shall determine the qualifications of its members,144 Article

I, Section 2 delineates the three requirements for House membership—a Representative must be

at least 15, have been a U.S. citizen for at least seven years, and inhabit the state he represents.145

Therefore, the Powell Court concluded, the House’s claim that it possessed unreviewable

authority to determine the qualifications of its members “was defeated by this separate provision

specifying the only qualifications which might be imposed for House membership.”146 In other

words, finding that the House had unreviewable authority to decide its members’ qualifications

would violate another provision of the Constitution. The Court therefore concluded in Powell that

whether the three requirements in the Constitution were satisfied was textually committed to the

House, “but the decision as to what these qualifications consisted of was not.”147 Applying the

logic of Powell to the case at hand, the Nixon Court noted that here, in contrast, leaving the

interpretation of the word “try” with the Senate did not violate any “separate provision” of the

Constitution.148

135

Id. at 231.

Id. at 235 (italics in original).

137

Id.

138

Id. at 236.

139

Id.

140

Id. at 236-38 (discussing Powell v. McCormack, 395 U.S. 486 (1969)).

141

See Powell v. McCormack, 395 U.S. 486, 489-495 (1969).

142

Nixon, 506 U.S. at 236-37 (quotations omitted).

143

Id. at 237.

144

Id. See U.S. Const. art I. §5.

145

Nixon, 506 U.S. at 236-37. See U.S. Const. art I. §2.

146

Id.

147

Nixon, 506 U.S. at 236-37.

148

Id.

136

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Lower Courts’ Application

Foreign Policy Decisions

In Baker v. Carr, the Court specifically noted that cases addressing foreign policy decisions could

present a political question.149 Lower federal courts have dismissed cases on this basis on a

number of occasions.150 Generally speaking, lower courts have sometimes dismissed suits seeking

judicial review of discretionary military or foreign policy decisions by the executive branch as

raising nonjusticiable political questions. In addition, certain claims have been dismissed under

the doctrine because their adjudication would harm the foreign policy interests of the United

States. However, the precise circumstances where the doctrine applies are unclear; courts have

invoked constitutional and prudential considerations (and sometimes both) in order to dismiss

cases implicating foreign policy as political questions.151

Some lower courts have determined that discretionary military decisions are textually committed

to the political branches and the judiciary lacks manageable standards to review them. For

example, a district court in the D.C. Circuit dismissed a suit challenging the operation of the

149

Baker, 369 U.S. at 211.

See, e.g., Spectrum Stores, Inc. v. Citgo Petrol. Corp., 632 F.3d 938, 943 (5th Cir. 2011) (dismissing as a political

question two class actions alleging violations of the Sherman Act and Clayton Act brought against oil production

companies because the claims “effectively challenge the structure of OPEC and its relation to the worldwide production

of petroleum”); Corrie v. Caterpillar, Inc., 503 F.3d 974, 982 (9th Cir. 2007) (dismissing various common law and

statutory claims on political question grounds because “[a]llowing this action to proceed would necessarily require the

judicial branch of our government to question the political branches’ decision to grant extensive military aid to Israel”);

Bancoult v. McNamara, 445 F.3d 427, 429 (D.C. Cir. 2006) (dismissing claims alleging “the United States government

forcibly removed them from their homes on islands in the Indian Ocean in order to construct a military base” on

political question grounds); Schneider v. Kissinger, 412 F.3d 190, 191-192 (D.C. Cir. 2005) (holding that claims

brought against United States and former national security advisor for causing a Chilean general’s “kidnapping, torture,

and death” through a military coup posed a nonjusticiable political question); Aktepe v. United States, 105 F.3d 1400

(11th Cir. 1997); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir.1985) (dismissing a claim brought by

Members of Congress arguing that President Reagan’s aid to Contras amounted to waging war in violation of the

Constitution’s war powers clause on political question grounds); Crockett v. Reagan, 720 F.2d 1355, 1356-57 (D.C.

Cir. 1983) (affirming district court’s dismissal of suit brought by members of Congress challenging the presence of

military advisors in El-Salvador as a violation of the War Powers Resolution and the war powers clause of the

Constitution on political question grounds); Ange v. Bush, 752 F. Supp. 509, 514 (D.D.C. 1990) (challenge to President

George H.W. Bush’s deployment order to the Persian Gulf as violating the War Powers Resolution and the war powers

clause of the Constitution posed a political question); Holtzman v. Schlesinger, 484 F.2d 1307, 1309–11 (2d Cir. 1973)

(holding that a challenge brought against United States’ military activities in Cambodia posed a political question). But

see Campbell v. Clinton, 203 F.3d 19, 37-41 (D.C. Cir. 2000) (Tatel, J., concurring) (political question doctrine not

implicated by a challenge to President Clinton’s ordering airstrikes in Yugoslavia); Berk v. Laird, 429 F.2d 302, 306

(2d Cir. 1970) (indicating that a challenge to the Vietnam War did not automatically implicate a political question).

151

See Jack Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. Colo. L. Rev. 1395, 140103 (1999). In addition to claims that directly seek judicial review of military decisions, a number of suits for damages

have been brought against military contractors employed by the United States, which can also implicate the political

question doctrine. See Al-Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 2014) (remanding for

further factual development to determine if case posed political question); Harris v. Kellog Brown & Root Services,

Inc., 724 F.3d 458 (3d Cir. 2013) (same); Taylor v. Kellog Brown & Root Services, Inc., 658 F.3d 402 (4th Cir. 2011)

(claim brought by servicemember against military contractor was barred by the political question doctrine); Carmichael

v. Kellog Brown & Root Services, Inc., 572 F.3d 1271 (11th Cir. 2009) (claim against military contractors for

negligence in driving truck posed political question). For more information on tort suits brought against federal

contractors, see CRS Report R43462, Tort Suits Against Federal Contractors: Selected Legal Issues, by (name reda

cted).

150

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United States’ “kill lists” as raising a political question.152 In that case, the father of Anwar AlAulaqi—who was allegedly on the government’s “kill list”—sought a judicial declaration of

when the United States may “select individuals for targeted killing” and an injunction preventing

the United States from doing so to Anwar Al-Aulaqi unless it meets that standard.153 The court

ruled that there were no judicially manageable standards by which to adjudicate the case.

Evaluating “the merits of the President’s (alleged) decision to launch an attack on a foreign

target,” the court noted, would “require this court to elucidate the ... standards that are to guide a

President when he evaluates the veracity of military intelligence.”154 However, “there are no

judicially manageable standards” for courts to employ in reviewing the President’s “interpretation

of military intelligence,” his decision to use military force on the basis of that intelligence, or the

“nature and magnitude of the national security threat posed by a particular individual.”155

The court noted that the D.C. Court of Appeals had previously held that whether a “particular

organization’s alleged terrorist activity threatens national security” raised a political question;156

likewise, it was “axiomatic that courts must also decline to assess whether a particular

individual’s alleged terrorist activities threaten national security.”157 Accordingly, the court could

not determine whether the United States was justified in using force against Al-Aulaqi.158 In

addition, the court noted that Bakers’ first, fourth, and sixth factors also weighed against

justiciability because decisions of when to use military force were “textually committed to the

political branches,” and any ex post judicial review of the matter “would reveal a ‘lack of respect

due coordinate branches of government’ and create ‘the potentiality of embarrassment of

multifarious pronouncements by various departments on one question.’”159

Similarly, in El-Shifa v. United States., the D.C. Court of Appeals held that a suit seeking review

of “the President’s decision to launch an attack on a foreign target” presented a nonjusticiable

political question.160 In response to the 1998 terrorist bombing of United States embassies in

Kenya and Tanzania, President Clinton ordered airstrikes against two targets, including a factory

in Sudan believed to be associated with the terrorists and producing materials for chemical

weapons.161 Owners of the plant brought suit against the United States alleging that the

152

Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 52 (D.D.C. 2010).

Id. at 47-48. The plaintiffs conceded that ex ante judicial review of targeting decisions would be “infeasible,” id. at

48 (quotations omitted), and requested the court to enter a preliminary injunction enforced after via an “after-the-fact

contempt motion or an after-the-fact damages action.” id. at 48 (quotations omitted).

154

Id. at 47 (citing El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836, 846 (D.C. Cir. 2010))

(internal quotations omitted).

155

Id. at 47.

156

Id. (citing People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 23 (D.C. Cir. 1999)).

157

Id.

158

Id.

159

Id. at 48 (quoting Baker, 369 U.S. at 217). In a subsequent action in a district court in the District of Columbia,

Anwar Al-Aulaqi’s father brought a damages action against U.S. government officials in their personal capacities for

violations of, inter alia, the Fifth Amendment. Al-Aulaqi v. Panetta,—F. Supp. 2d. – (D.D.C. 2014). That court, in an

opinion written by Judge Rosemary M. Collyer, held that the political question doctrine did not apply, noting that the

“powers granted to the Executive and Congress to wage war and provide for national security does not give them carte

blanche to deprive a U.S. citizen of his life without due process and without judicial review.” Id. at 9 (italics in

original). Nevertheless, the court dismissed the action “because special factors counsel hesitation in implying a Bivens

remedy in these circumstances. Id. at 6.

160

El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836, 844 (D.C. Cir. 2010) (en banc).

161

See id. at 838-39.

153

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destruction of their plant violated the law of nations, as well as a claim seeking a declaration that

the statements made by government officials about them were defamatory.162

The court explained that, at least in cases concerning national security and foreign relations, “the

presence of a political question ... turns not on the nature of the government conduct under review

but more precisely on the question the plaintiff raises about the challenged action.”163 In this vein,

the court distinguished between “claims requiring us to decide whether taking military action was

‘wise,’ and suits concerning “‘purely legal issues’ such as whether the government had legal

authority to act.”164 The former, the court explained, was a determination committed to the

political branches, and the “courts are not a forum for reconsidering the wisdom of discretionary

decisions made by the political branches in the realm of foreign policy or national security.”165

Such “strategic choices” were “constitutionally committed to the political branches.”166 This

constitutional commitment “reflects the institutional limitations of the judiciary and the lack of

manageable standards to channel any judicial inquiry into these matters.”167 The plaintiffs’ claim

under the law of nations would require judicial analysis into whether the airstrikes were

“mistaken and not justified,”168 and the claim for defamation would require a judicial

determination of the “factual validity of the government’s stated reasons for the strike.”169 The

court concluded that the political question doctrine barred courts from “assessing[ing] the merits

of the President’s decision to launch an attack on a foreign target.”170

However, two separate concurrences questioned the panel’s reasoning, arguing that the proper

basis for dismissal was on statutory grounds—the plaintiffs did not allege a “cognizable cause of

action”—rather than because the case posed a political question.171 Judge Ginsberg criticized the

court for expanding the political question doctrine to the point where “even a straightforward

statutory case, presenting a purely legal question, is non-justiciable if deciding it could merely

reflect adversely upon a decision constitutionally committed to the President.”172 This “new

political question doctrine” permitted the court to decline to adjudicate a case “regardless whether

the court would actually have to decide a political question in order to resolve it.”173

Likewise, Judge Kavanaugh’s concurring opinion argued that the court’s opinion improperly

invoked the political question doctrine. While the doctrine was applicable to “cases alleging

violations of the Constitution,” it did not apply to cases that concerned “alleged statutory

violations.”174 Here, the plaintiffs’ claim was not that the “Executive Branch violated the

Constitution,” but that “the Executive Branch violated congressionally enacted statutes that

162

See id. at 839-40.

Id. at 842.

164

Id. at 842 (quoting Campbell v. Clinton, 203 F.3d 19, 40 (D.C. Cir. 2000) (Tatel, J., concurring)).

165

Id. at 842.

166

Id. at 843.

167

Id.

168

Id. at 844 (quotations omitted).

169

Id.

170

Id.

171

Id. at 852-859 (Kavanaugh, J., concurring); id. at 851 (Ginsberg, J., concurring).

172

Id. at 852 (Ginsberg, J., concurring).

173

Id. at 851.

174

Id. at 856 (Kavanaugh, J., concurring) (emphasis in original).

163

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purportedly constrain the Executive.”175 The proper question for the court when confronting a

statutory claim then was “whether the statute as applied infringes on the President’s exclusive,

preclusive authority under Article II of the Constitution.”176 Judge Kavanaugh explained that

application of the political question doctrine in statutory cases does “not reflect benign deference

to the political branches,” but “systematically favor[s] the Executive Branch over the Legislative

Branch.”177 This serves to bar Congress from restricting the executive branch “in the challenged

sphere of action,” and essentially holds that the President’s power is “exclusive and

preclusive.”178 He thus concluded that “whether a statute intrudes” on the President’s Article II

authority “must be confronted directly through careful analysis of Article II—not answered by

backdoor use of the political question doctrine, which may sub silentio expand executive power

in an indirect, haphazard, and unprincipled manner.”179 Nonetheless, Judge Kavanaugh concurred

in the judgment because there was no cause of action for either of the plaintiffs’ claims.180

Lower courts have also dismissed claims as nonjusticiable political questions because

adjudication would show a lack of respect for a coordinate branch of government—Baker’s fourth

factor. This reasoning appears to be buttressed by courts’ conclusion that foreign policy decisions

are committed to the political branches. In In re Nazi Era Cases Against German Defendants

Litigation, for example, a Holocaust survivor brought claims against German corporations who

allegedly cooperated with the Nazi regime.181 The executive branch, however, had negotiated

with the government of Germany to establish a foundation for making payments to victims, and

entered an executive agreement that recognized the foundation as the sole forum for such

claims.182 The Third Circuit Court of Appeals affirmed dismissal of the case as presenting a

nonjusticiable political question because adjudication “would express a lack of respect for the

Executive Branch because of the Executive Branch’s longstanding foreign policy interest that

issues relating to World War II and Nazi-era claims be resolved through intergovernmental

negotiation.”183

Similarly, the D.C. Circuit Court of Appeals has refused to substitute its own judgment as to

which nation is sovereign over Taiwan when the executive branch avoided doing so.184 In Lin v.

United States, residents of Taiwan sought a judicial declaration they were U.S. nationals and were

entitled to U.S. passports. They based their claim on the San Francisco Peace Treaty with

Japan185—which established the United States as Taiwan’s “principal occupying power”—arguing

that this gave the United States “temporary de jure sovereignty.”186 The court noted that it “could

175

Id. at 855.

Id.

177

Id. at 857.

178

Id.

179

Id.

180

Id. at 853-55.

181

196 Fed.Appx. 93, 94-96 (3d Cir. 2006).

182

Id. at 94-95.

183

Id. at 98.

184

See Lin v. United States, 561 F.3d 502, 508 (D.C. Cir. 2009); see also Corrie v. Caterpillar, Inc., 503 F.3d 974, 983

(9th Cir. 2007) (“Plaintiffs’ action also runs head-on into the fourth, fifth, and sixth Baker tests because whether to

support Israel with military aid is not only a decision committed to the political branches, but a decision those branches

have already made.”).

185

See Treaty of Peace with Japan, art. 2(b), September 8, 1951, 3 U.S.T. 3169, 136 U.N.T.S. 45.

186

Lin, 561 F.3d at 505.

176

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resolve this case through treaty analysis and statutory construction,” but declined to do so because

resolution of the issue posed a political question.187 The court reasoned that the executive has

discretion to determine who exercises sovereignty over a country, and the U.S. had strategically

avoided doing so with regard to Taiwan; therefore, “judicial modesty as well as doctrine

caution[ed]” against a court inserting its own judgment.188 The court concluded that the judiciary

does “not dictate to the Executive what governments serve as the supreme authorities of foreign

lands, [a] rule [that] applies a fortiori to determinations of U.S. sovereignty.”189

Similarly, in line with the Supreme Court’s caution expressed in Sosa v. Alvarez-Machain,190 the

D.C. Circuit dismissed as a nonjusticiable political question claims under the Alien Tort Statute

seeking damages from Japan and alleging violations of international law.191 Adjudication of the

case would have required determining whether the claims of various plaintiffs were extinguished

when their governments signed treaties with Japan.192 The executive branch filed a Statement of

Interest with the court urging that resolution of the case would damage the United States’ foreign

policy interests. The court reasoned that the Constitution committed the issue to the political

branches—primarily the President193—and “defer[red] to the judgment of the Executive Branch

... that judicial intrusion into the relations between Japan and other foreign governments would

impinge upon the ability of the President to conduct the foreign relations of the United States.”194

Executive Discretion

On a more limited basis, some lower courts have dismissed challenges to the executive branch’s

law enforcement discretion as nonjusticiable political questions. For example, the Tenth Circuit

Court of Appeals dismissed a suit seeking to compel the executive branch to “maintain market

conditions favorable to small farmers” as a nonjusticiable political question.195 In particular, the

plaintiffs sought, inter alia, a “moratorium on farm foreclosures” and judicial “oversight of the

Justice Department’s enforcement of antitrust laws against agribusinesses.”196 Finding Baker’s

first category applicable to these claims, the court dismissed them as nonjusticiable political

questions. The court noted that the Constitution vests the executive power in the President and

instructs him to “take care that the Laws be faithfully executed.”197 Therefore, the court

explained, “there is a textual commitment to the Executive Branch to enforce banking laws and to

exercise prosecutorial discretion in bringing antitrust suits.”198

187

Id. at 506 (emphasis in original).

Id.

189

Id. at 507.

190

542 U.S. 692, 733 n.21 (2004).

191

Hwang Geum Joo v. Japan, 413 F.3d 45, 49, 52-53 (D.C. Cir. 2005) (noting that the Supreme Court’s opinion in

Sosa v. Alvarez-Machain gives “direction ... closely related to the legal and factual circumstances of this case: A policy

of ‘case-specific deference to the political branches’ may be appropriate in cases brought under the Alien Tort Statute)

(citing Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004)).

192

Id. at 51-52.

193

Id. (citing Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 423 n.12 (2003).

194

Id. at 48.

195

Schroder v. Bush, 263 F.3d 1169, 1171 (10th Cir. 2001).

196

Id. at 1175.

197

Id. (quotations omitted) (quoting U.S. Const. art. II, §3).

198

Schroder, 263 F.3d at 1175.

188

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Similarly, the Ninth Circuit Court of Appeals has ruled that a discretionary decision of the

Secretary of Commerce was a nonjusticiable political question.199 In that case, the defendants

were indicted for violation of the Export Administration Act of 1979 (EAA),200 which allows the

Secretary of Commerce to impose and enforce export controls via licensing requirements for

certain commodities.201 Commodities requiring export licenses are placed on the Commodities

Control List (CCL).202 The defendants moved to discover all relevant documents for the purpose

of examining “‘whether the government followed the legislative mandate ... in placing the items

listed on the indictment’ on the CCL.”203 The court noted that the Secretary’s decision to place an

item on the CCL involved national security and foreign relations concerns—“matters of policy

entrusted by the Constitution to the Congress and the President, for which there are no

meaningful standards of review.”204 The court thus ruled that the decision by the Secretary to

place a commodity on the CCL was a nonjusticiable political question.205 Nevertheless, given that

the court’s decision included national security concerns, one might argue that this case is

distinguishable from the Tenth Circuit Court of Appeal’s refusal to adjudicate a suit seeking to

compel the executive branch to take specific enforcement actions.

Narrowing the Scope of the Doctrine

Zivotofsky v. Clinton

Recently, in Zivotofsky v. Clinton, the Court rejected application of the political question doctrine

to a plaintiff’s statutory claim, and harnessed an interpretive approach that may have narrowed

the doctrine’s scope.206 At issue in the case was a congressional statute providing that, upon their

request, the Secretary of State should list the place of birth as Israel on passports for United States

citizens born in the city of Jerusalem.207 Zivotofsky, an American citizen born in Jerusalem,

sought to have his passport read “Jerusalem, Israel” as the place of birth; but the State

Department refused consistent with department policy to “not write Israel or Jordan” as the

birthplace of someone born in Jerusalem.208 Zivotofsky then brought suit in federal court, seeking

a declaratory judgment and a permanent injunction directing the Secretary of State to list

“Jerusalem, Israel” as his place of birth.209 The D.C. Court of Appeals found the case to present a

nonjusticiable political question and affirmed dismissal of the case.210 The court reasoned that

199

United States v. Mandel, 914 F.2d 1215 (9th Cir. 1990).

See 18 U.S.C. 371.

201

See 50 U.S.C.A. 2402(2), (10), 2403-06.

202

See 50 U.S.C.A. 2403(b), (c).

203

Mandel, 914 F.2d at 1218 (quotations omitted).

204

Id. at 1223-23.

205

Id. The court thus reversed the district court’s discovery order compelling the government to release the records

relevant to the Secretary’s decision. Id.

206

Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1425 (2012).

207

See Foreign Relations Authorization Act, Fiscal Year 2003, 116 Stat. 1350.

208

Zivotofsky, 132 S. Ct. at 1425 (quoting State Department Foreign Affairs Manual, 7 Foreign Affairs Manual §1383,

Exh. 1383.1, App. 127).

209

Id. at 1426.

210

Zivotofsky v. Sec'y of State, 571 F.3d 1227, 1231 (D.C. Cir. 2009).

200

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“[o]nly the Executive—not Congress and not the courts—has the power to define U.S. policy

regarding Israel’s sovereignty over Jerusalem and decide how best to implement that policy.”211

The Supreme Court reversed, holding that the political question doctrine did not bar adjudication

of the claim.212 Central to the Court’s reasoning was its understanding of the precise legal

question at issue. The Court explained that, contrary to the framing of the question given by the

lower courts, it was “not being asked to supplant a foreign policy decision of the political

branches with the courts’ own unmoored determination of what United States policy toward

Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory

right”;213 which required the Court to determine if the plaintiff interpreted the statute correctly,

and whether the statute was constitutional.214 This framing of the question ruled out application of

the political question doctrine.

In its analysis, the Court described political questions as controversies involving the first two

Baker factors—“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.”215 While the government argued that there was a “‘textually demonstrable constitutional

commitment’ to the President of the sole power ... to determine whether an American born in

Jerusalem may choose to have Israel listed as his place of birth on his passport[;]”216 the Court

noted that there was no “exclusive commitment to the Executive of the power to determine the

constitutionality of a statute.”217 Likewise, the Court reasoned, there might be “‘a lack of

judicially discoverable and manageable standards for resolving’ ... whether the Judiciary may

decide the political status of Jerusalem.”218 But such “concerns ... dissipate when the issue is

recognized to be the more focused one of the constitutionality of” the statute in question.219

Justice Sotomayor, joined in part by Justice Breyer, issued a concurring opinion.220 In contrast to

the majority, which mentioned only the first two Baker factors,221 Justice Sotomayor’s opinion

listed all six, and explained that they represented “three distinct justifications for withholding

judgment on the merits of a dispute.”222 In the first—when a case is textually committed to

another branch—“the Constitution itself requires that another branch resolve the question

presented.”223 The second and third factors—a lack of judicial standards and the impossibility of

rendering a decision without making a nonjudicial policy decision—“reflect circumstances in

which a dispute calls for decisionmaking beyond courts’ competence.”224 The remaining factors

211

Id. at 1232.

Zivotofsky, 132 S. Ct. at 1426-31.

213

Id. at 1427.

214

Id.

215

Id. at 1427 (citing Nixon, 506 U.S. at 228; Baker, 369 U.S. 217) (quotations omitted).

216

Id. at 1428.

217

Id.

218

Id. (quotations omitted).

219

Id.

220

Id. at 1431-35 (J. Sotomayor, concurring).

221

Id. at 1427.

222

Id. at 1431 (J. Sotomayor, concurring).

223

Id. at 1432.

224

Id.

212

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“address circumstances in which prudence may counsel against a court’s resolution of an issue

presented.”225 Justice Sotomayor explained that “[c]ourts should be particularly cautious before

forgoing adjudication of a dispute” under these last three factors, but noted that certain cases can

present situations “unfit for judicial disposition.”226

Justice Sotomayor also argued that, while this case did not present a political question, it was not

the case that no statute could ever do so.227 She pointed to a past Supreme Court decision refusing

to adjudicate a challenge to a state statute under the Guarantee Clause,228 and noted that it was

possible for a statute to raise nonjusticiable issues. For example, if a statute bestowed financial

relief on people “improperly ‘tried’ of impeachment offenses,” then a court hearing claims under

the statute would be forced to adjudicate matters found nonjusticiable in Nixon v. United States.229

Finally, Justice Sotomayor disagreed with the majority’s finding that because “the parties’

arguments rely on textual, structural, and historical evidence of the kind that courts routinely

consider,” the case did not present an issue lacking judicial standards.230 She explained:

it is not whether the evidence upon which litigants rely is common to judicial consideration

that determines whether a case lacks judicially discoverable and manageable standards.

Rather, it is whether that evidence in fact provides a court a basis to adjudicate meaningfully

the issue with which it is presented. The answer will almost always be yes, but if the parties’

textual, structural, and historical evidence is inapposite or wholly unilluminating, rendering

judicial decision no more than guesswork, a case relying on the ordinary kinds of arguments

offered to courts might well still present justiciability concerns.231

What’s Left of the Political Question Doctrine?

The majority opinion in Zivotofsky appears to have limited the scope of cases that may pose a

political question; but the remaining contours of the doctrine are unclear. The Court did not

overrule any of its past decisions that had found political questions, so those cases appear to

remain good law; and it mentioned the first two Baker factors as relevant in finding a political

question, which would appear to leave those factors intact for lower courts to apply.232 However,

as mentioned above, many lower federal courts have dismissed cases involving statutes that

concern foreign affairs on political question grounds.233 A fair reading of Zivotofsky indicates

much less room to do so in the future. Commentators addressing this question have disagreed on

how broadly to read the Court’s opinion.234 At a minimum, the Court’s framing of the underlying

225

Id.

Id. at 1433.

227

Id. at 1435.

228

Id. (pointing to Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569 (1916)).

229

Id.

230

Id.

231

Id.

232

See, e.g., Rangel v. Boehner, CV 13-540 (JDB), 2013 WL 6487502 at *15-16 (D.D.C. December 11, 2013) (ruling

that [w]hether discipline of a Member [of Congress] was “proper” is textually committed to the House [and] involves a

political question and the Court must dismiss his claims”).

233

See supra “Foreign Policy Decisions.”

234

Compare Comment, There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of

Zivotofsky v. Clinton, 123 Yale L.J. 253, 264-65 (2013); Note, The Return of the Classical Political Question Doctrine

in Zivotofsky ex. rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) with The Supreme Court 2011 Term – Leading

Cases, 126 Harv. L. Rev. 307, 311 (2012).

226

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issues in the case—whether the statute granting the plaintiff a right was constitutional, rather than

whether a court may adjudicate Jerusalem’s political status—could caution lower courts from

finding political questions in cases involving statutory claims.235 In other words, the proper

analysis under Zivotofsky in cases where a plaintiff seeks to vindicate a statutory right begins with

whether the statute is constitutional and may be enforced against the executive, not whether

resolution of the issue would pose a political question. This interpretative sequence when courts

are faced with statutory claims requires adjudication on the merits in at least some cases that

would otherwise be dismissed as posing political questions.236

In fact, one reading of the majority opinion might be that no case presenting a potential question

of statutory interpretation (i.e., when a court must interpret an ambiguous statute or determine

whether a statute is constitutional) can ever pose a political question. Reflecting perhaps a robust

conception of judicial supremacy, the majority emphasized that when a statute is “alleged to

conflict with the Constitution,” it is the duty of the courts to “say what the law is.”237

Nevertheless, the majority did not expressly hold that no political question could ever arise in a

case involving statutory interpretation, it simply stated that because the plaintiff sought to

vindicate a statutory right, the proper analysis was whether the statute was constitutional. And the

majority also did not address Justice Sotomayor’s concurrence that envisioned hypothetical

statutes that might do so.238 Put another way, the Court ruled that the proper analysis when a

plaintiff seeks to vindicate a statutory right is to examine the constitutionality of the statute; but

did not expressly hold that the political question doctrine is always inapplicable to cases

involving statutes.

The majority’s analytic framework might also indicate that some cases involving statutory

interpretation could still pose a political question. The majority did not fully explain why its

interpretative approach was the proper one. Instead, it simply reasoned that because the plaintiff

sought to vindicate a statutory right, a court should interpret the statute at issue, and the political

question doctrine was inapplicable. The Court did not clearly indicate whether this was the

correct approach in all cases presenting a matter of statutory interpretation. Without such an

interpretative anchor for lower courts to follow, there may remain some room for courts to

construe a case involving statutory interpretation in a manner that avoids falling under

Zivotofsky’s requirements.239 For example, a court might conclude that a statute fails to provide a

court with meaningful standards to apply and find a political question on that basis.240 And tort

235

See, e.g., Kaplan v. Central Bank of Islamic Republic of Iran, 961 F. Supp. 2d 185, 191-93 (D.D.C. 2013) (rejecting

a challenge on political question grounds to a claim brought under the Alien Tort Statute and Foreign Sovereign

Immunities Act because the plaintiffs “seek relief under several federal statutes authorizing recovery for specific

conduct” which is justiciable under Zivotofsky).

236

See, e.g., Zivotofsky, 132 S. Ct. at 1430-31 (reversing the lower courts’ finding of a political question and remanding

for a ruling on the constitutionality of the statute in question).

237

Id. at 1428 (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).

238

Id. at 1334-35 (Sotomayor, J., concurring).

239

See generally Arunga v. Romney, 2:12-CV-873, 2012 WL 5269174 (S.D. Ohio October 24, 2012) (ruling that the

subject matter of the plaintiff’s complaint—invoking jurisdiction under 18 U.S.C. §§1956 and 1957; alleging that “a

presidential candidate is threatening to create an unconstitutional form of government”—was a political question).

240

See, e.g., Alaska v. Kerry, 972 F. Supp. 2d 1111, 1130 (D. Alaska 2013) (finding that a treaty did “not provide

‘judicially discoverable and manageable standards’ for the Court to apply in evaluating the Secretary of State’s

action”).

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claims brought against the federal government might sometimes pose a political question if they

would require a court to review military discretionary decisions.241

Likewise, a broad reading of Zivotofsky might also eliminate judicial consideration of the

prudential aspects of the political question doctrine or severely limit the application of Baker’s

second factor—a lack of judicial standards.242 In the first place, the majority opinion only

mentioned the first two Baker factors in its analysis, declining to even mention the remaining

four.243 The Court also rejected the argument that resolution of the claim was inappropriate

because of a lack of judicially manageable standards.244 The majority noted that while

adjudicating the constitutionality of the statute in question would be difficult, requiring a “careful

examination of textual, structural, and historical evidence,” this is exactly “what courts do.245 In

fact, the Court reasoned that while there may not be adequate judicial standards to determine the

“political status of Jerusalem,” that concern “dissipate[s]” when the question is the

constitutionality of a statute.246 One might even read this assertion as discouraging courts from

consequentialist concerns when determining the applicability of the political question doctrine.247

Nonetheless, the Court did not expressly disclaim reliance on prudential factors to find that a case

presented a political question; it simply omitted them in its analysis. It also failed to address

Justice Sotomayor’s concurrence, which argued for the continuing vitality of prudential factors.

In addition, while the majority rejected the argument that there were no judicial standards in the

case because the parties relied on evidence routinely considered by courts, Justice Sotomayor’s

concurrence pointed out that similar evidence was available in Nixon, a case that did pose a

political question.248 The proper question for the Court, she argued, was not “whether the

evidence upon which litigants rely is common to judicial consideration,” but instead “whether

that evidence in fact provides a court a basis to adjudicate meaningfully the issue with which it is

presented.”249 Again, because the majority did not expressly hold that the availability of such

evidence precluded a finding that there were no judicial standards to apply, combined with the

failure of the majority to address Sotomayor’s concurrence, the political question doctrine’s

prudential factors may have survived.250

241

See, e.g., Al-Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 2014) (remanding for further factual

development to determine if case posed political question); Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458,

465 (3d Cir. 2013) (“Nonetheless, these suits may present nonjusticiable issues because military decisions that are

textually committed to the executive sometimes lie just beneath the surface of the case.”); see also Arunga v. Romney,

2:12-CV-873, 2012 WL 5269174 (S.D. Ohio October 24, 2012) (ruling that the subject matter of the plaintiff’s

complaint—“a presidential candidate is threatening to create an unconstitutional form of government”—was a political

question).

242

See, e.g., Note, The Return of the Classical Political Question Doctrine in Zivotofsky ex. rel. Zivotofsky v. Clinton,

132 S. Ct. 1421 (2012).

243

Zivotofsky, 132 S. Ct. at 1427.

244

Id. at 1428-30.

245

Id. at 1430.

246

Id. at 1428.

247

See The Supreme Court 2011 Term – Leading Cases, 126 Harv. L. Rev. 307, 315 (2012).

248

Zivotofsky, 132 S. Ct. at 1334-35 (Sotomayor, J., concurring).

249

Id. at 1435 (Sotomayor, J., concurring).

250

See, e.g., Alaska v. Kerry, 972 F. Supp. 2d 1111, 1130 (D. Alaska 2013) (applying Baker’s second, fourth, and sixth

factors and finding the plaintiff’s claim presented a political question).

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Implications on the Separation of Powers

A reduction in situations where courts may decline to adjudicate a case on political question

grounds may have important implications for the separation of powers, at least as between

Congress and the executive branch. Finding a political question in a case where no disagreement

exists between the political branches can be understood as an exercise of judicial minimalism

without important consequences for the relationship between Congress and the executive

branch.251 In contrast, finding a political question in a case where a core issue presented is

whether the executive branch is bound by a statute obviously can impact the separation of

powers.252

Such judicial reluctance to enforce a statute, one might argue, leaves resolution of such questions

to the political branches, and allows some constitutional questions to be resolved via a struggle

between the political branches, rather than by the courts. Others have argued, however, that the

practice actually favors the executive branch at the expense of Congress.253 Instead of

determining a statute’s constitutionality, the argument goes, courts effectively decline to force the

executive branch to comply with congressional will—essentially expanding executive branch

power.

Whether the practice functioned to allow the political branches to determine separations of

powers disputes between themselves, or effectively sanctioned executive branch practices,

Zivotofsky can be read to restrict lower courts’ discretion to apply the doctrine in the future. If so,

this may entail more judicial resolution of separation of powers disputes, ultimately affirming the

judiciary’s role to “say what the law is,” and possibly reducing the constitutional interpretative

power of the political branches.254

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

251

The absence of a dispute between the political branches does not, of course, mean that a dismissal on political

question grounds does not have other important consequences. See, e.g., Nixon v. United States, 506 U.S. 224, 226-27

(1993).

252

See, e.g., Zivotofsky, 132 S. Ct. at 1430-31.

253

See El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836, 852-59 (D.C. Cir. 2010) (en banc)

(Kavanaugh, J., concurring).

254

See generally Barkow, supra note 18, at 300-19.

Congressional Research Service

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