The Doctrine Reappears

Political Questions

It may be that the Court will refuse to adjudicate a case assuredly within its jurisdiction, presented by parties with standing in which adverseness and ripeness will exist, a case in other words presenting all the qualifications we have considered making it a justiciable controversy. The “label” for such a case is that it presents a “political question.” Although the Court has referred to the political question doctrine as “one of the rules basic to the federal system and this Court’s appropriate place within that structure,”544 a commentator has remarked that “[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms known to the law. The origin, scope, and purpose of the concept have eluded all attempts at precise statements.”545 That the concept of political questions may be “more amenable to description by infinite itemization than by generalization”546 is generally true, although the Court’s development of rationale in Baker v. Carr547 has changed this fact radically. The doctrine may be approached in two ways, by itemization of the kinds of questions that have been labeled political and by isolation of the factors that have led to the labeling.

544 Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); cf. Baker v. Carr, 369 U.S. 186, 278 (1962) (Justice Frankfurter dissenting). The most successful effort at conceptualization of the doctrine is Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517 (1966). See Hart & Wechsler, supra at 270-294.

545 Frank, Political Questions, in Supreme Court and Supreme Law 36 (E. Cahn ed., 1954).

546 Id.

547 Baker v. Carr, 369 U.S. 186, 208-232 (1962).

Origins and Development.—In Marbury v. Madison,548 Chief Justice Marshall stated: “The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.”549

But the doctrine was asserted even earlier as the Court in Ware v. Hylton550 refused to pass on the question whether a treaty had been broken. And in Martin v. Mott,551 the Court held that the President acting under congressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But it was in Luther v. Borden552 that the concept was first enunciated as a doctrine separate from considerations of interference with executive functions. This case presented the question of the claims of two competing factions to be the only lawful government of Rhode Island during a period of unrest in 1842.553 Chief Justice Taney began by saying that the answer was primarily a matter of state law that had been decided in favor of one faction by the state courts.554

548 5 U.S. (1 Cr.) 137, 170 (1803).

549 In Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 516 (1840), the Court, refusing an effort by mandamus to compel the Secretary of the Navy to pay a pension, said: “The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them.” It therefore follows that mandamus will lie against an executive official only to compel the performance of a ministerial duty, which admits of no discretion, and may not be invoked to control executive or political duties which admit of discretion. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838).

550 3 U.S. (3 Dall.) 199 (1796).

551 25 U.S. (12 Wheat.) 19 (1827).

552 48 U.S. (7 How.) 1 (1849).

553 Cf. Baker v. Carr, 369 U.S. 186, 218-22 (1962); id. at 292-97 (Justice Frankfurter dissenting).

554 Luther v. Borden, 48 U.S. (7 How.) 1, 40 (1849).

Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the clause empowering the United States to guarantee to every State a republican form of government,555 and this clause committed determination of the issue to the political branches of the Federal Government. “Under this article of the Constitution 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 neccessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.”556 Here, the contest had not proceeded to a point where Congress had made a decision, “[y]et the right to decide is placed there, and not in the courts.”557

Moreover, in effectuating the provision in the same clause that the United States should protect them against domestic violence, Congress had vested discretion in the President to use troops to protect a state government upon the application of the legislature or the governor. Before he could act upon the application of a legislature or a governor, the President “must determine what body of men constitute the legislature, and who is the governor ... .” No court could review the President’s exercise of discretion in this respect; no court could recognize as legitimate a group vying against the group recognized by the President as the lawful government.558 Although the President had not actually called out the militia in Rhode Island, he had pledged support to one of the competing governments, and this pledge of military assistance if it were needed had in fact led to the capitulation of the other faction, thus making an effectual and authoritative determination not reviewable by the Court.559

555 48 U.S. at 42 (citing Article IV, 4).

556 48 U.S. at 42

557 48 U.S. at 42

558 48 U.S. at 43.

559 48 U.S. at 44.

The Doctrine Before Baker v. Carr.—Over the years, the political question doctrine has been applied to preclude adjudication of a variety of issues. Certain factors appear more or less consistently through most but not all of these cases, and it is perhaps best to indicate the cases and issues deemed political before attempting to isolate these factors.

(1) By far the most consistent application of the doctrine has been in cases in which litigants asserted claims under the republican form of government clause,560 whether the attack was on the government of the State itself561 or on some manner in which it had acted,562 but there have been cases in which the Court has reached the merits.563

(2) Although there is language in the cases that would if applied make all questions touching on foreign affairs and foreign policy political,564 whether the courts have adjudicated a dispute in this area has often depended on the context in which it arises. Thus, the determination by the President whether to recognize the government of a foreign state565 or who is the de jure or de facto ruler of a foreign state566 is conclusive on the courts, but in the absence of a definitive executive action the courts will review the record to determine whether the United States has accorded a sufficient degree of recognition to allow the courts to take judicial notice of the existence of the state.567 Moreover, the courts have often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized.568 Similarly, the Court when dealing with treaties and the treaty power has treated as political questions whether the foreign party had constitutional authority to assume a particular obligation569 and whether a treaty has lapsed because of the foreign state’s loss of independence570 or because of changes in the territorial sovereignty of the foreign state,571 but the Court will not only interpret the domestic effects of treaties,572 it will at times interpret the effects bearing on international matters.573 The Court has deferred to the President and Congress with regard to the existence of a state of war and the dates of the beginning and ending and of states of belligerency between foreign powers, but the deference has sometimes been forced.574

560 Article IV, 4.

561 As it was on the established government of Rhode Island in Luther v. Borden, 48 U.S. (7 How.) 1 (1849). See also Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Taylor v. Beckham, 178 U.S. 548 (1900).

562 Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. City of Portland, 223 U.S. 151 (1912) (attacks on initiative and referendum); Marshall v. Dye, 231 U.S. 250 (1913) (state constitutional amendment procedure); O’Neill v. Leamer, 239 U.S. 244 (1915) (delegation to court to form drainage districts); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (submission of legislation to referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917) (workmen’s compensation); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 (1930) (concurrence of all but one justice of state high court required to invalidate statute); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937) (delegation of legislative powers).

563 All the cases, however, predate the application of the doctrine in Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912). See Attorney General of the State of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905) (legislative creation and alteration of school districts “compatible” with a republican form of government); Forsyth v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to court to determine municipal boundaries does not infringe republican form of government); Minor v. Happersett, 88 U.S. (21 Wall) 162, 175-176 (1875) (denial of suffrage to women no violation of republican form of government).

564 Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948).

565 United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852).

566 Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918). See Ex parte Hitz, 111 U.S. 766 (1884).

(3) Ordinarily, the Court will not look behind the fact of certification that the standards requisite for the enactment of legislation575 or ratification of a constitutional amendment576 have in fact been met, although it will interpret the Constitution to determine what the basic standards are,577 and it will decide certain questions if the political branches are in disagreement.578

567 United States v. The Three Friends, 166 U.S. 1 (1897); In re Baiz, 135 U.S. 403 (1890). Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

568 United States v. Reynes, 50 U.S. (9 How.) 127 (1850); Garcia v. Lee, 37 U.S. (12 Pet.) 511 (1838); Keene v. McDonough, 33 U.S. (8 Pet.) 308 (1834). See also Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839); Underhill v. Hernandez, 168 U.S. 250 (1897). But see United States v. Belmont, 301 U.S. 324 (1937). On the “act of State” doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), with First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). And see First National City Bank v. Banco Para el Comercio de Cuba, 462 U.S. 611 (1983); W. S. Kirkpatrick Co. v. Environmental Tectronics Corp., 493 U.S. 400 (1990).

569 Doe v. Braden, 57 U.S. (16 How.) 635 (1853).

570 Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947).

571 Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). On the effect of a violation by a foreign state on the continuing effectiveness of the treaty, see Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913).

572 Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Cf. Chinese Exclusion Cases, 130 U.S. 581 (1889) (conflict of treaty with federal law). On the modern formulation, see Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 229-230 (1986).

573 Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407 (1886).

574 Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. Miller Co., 333 U.S. 138 (1948); Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924); Ludecke v. Watkins, 335 U.S. 160 (1948); Lee v. Madigan, 358 U.S. 228 (1959); The Divina Pastora, 17 U.S. (4 Wheat.) 52 (1819). The cases involving the status of Indian tribes as foreign states usually have presented political questions but not always. The Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Sandoval, 231 U.S. 28 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

575 Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547 (1896); cf. Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868). See, for the modern formulation, United States v. Munoz-Flores, 495 U.S. 385 (1990).

576 Coleman v. Miller, 307 U.S. 433 (1939) (Congress’ discretion to determine what passage of time will cause an amendment to lapse, and effect of previous rejection by legislature).

577 Missouri Pac. Ry. v. Kansas, 248 U.S. 276 (1919); Rainey v. United States, 232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220 U.S. 107 (1911); Twin City Bank v. Nebeker, 167 U.S. 196 (1897); Lyons v. Woods, 153 U.S. 649 (1894); United States v. Ballin, 144 U.S. 1 (1892) (statutes); United States v. Sprague, 282 U.S. 716 (1931); Leser v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368 (1921); Hawke v. Smith, 253 U.S. 221 (1920); National Prohibition Cases, 253 U.S. 350 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) (constitutional amendments).

578 Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S. 583 (1938).

(4) Prior to Baker v. Carr,579 cases challenging the distribution of political power through apportionment and districting,580 weighted voting,581 and restrictions on political action582 were held to present nonjusticiable political questions.

From this limited review of the principal areas in which the political question doctrine seemed most established, it is possible to extract some factors that seemingly convinced the courts that the issues presented went beyond the judicial responsibility. These factors, necessarily stated baldly in so summary a fashion, would appear to be the lack of requisite information and the difficulty of obtaining it,583 the necessity for uniformity of decision and deferrence to the wider responsibilities of the political departments,584 and the lack of adequate standards to resolve a dispute.585 But present in all the political cases was (and is) the most important factor, a “prudential” attitude about the exercise of judicial review, which emphasizes that courts should be wary of deciding on the merits any issue in which claims of principle as to the issue and of expediency as to the power and prestige of courts are in sharp conflict. The political question doctrine was (and is) thus a way of avoiding a principled decision damaging to the Court or an expedient decision damaging to the principle.586

579 369 U.S. 186 (1962).

580 Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947).

581 South v. Peters, 339 U.S. 276 (1950) (county unit system for election of statewide officers with vote heavily weighted in favor of rural, lightly-populated counties).

582 MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating petitions must be spread among counties of unequal population).

583 Thus, see, e.g., Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948); Coleman v. Miller, 307 U.S. 433, 453, (1939).

584 Thus, see, e.g., Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839). Similar considerations underlay the opinion in Luther v. Borden, 48 U.S. (7 How.) 1 (1849), in which Chief Justice Taney wondered how a court decision in favor of one faction would be received with Congress seating the representatives of the other faction and the President supporting that faction with military force.

585 Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of the Court); id. at 68, 287, 295, (Justice Frankfurter dissenting)

586 For a statement of the “prudential” view, see generally A. BICKEL, THE LEAST DANGEROUS BRANCH—THE SUPREME COURT AT THE BAR OF POLITICS (1962), but see esp. 23-28, 69-71, 183-198. See also Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frankfurter dissenting.) The opposing view, which has been called the “classicist” view, is that courts are duty bound to decide all cases properly before them. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). See also H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW—SELECTED ESSAYS 11-15 (1961).

Baker v. Carr.—In Baker v. Carr,587 the Court undertook a major rationalization and formulation of the political question doctrine, which has considerably narrowed its application. Following Baker, the whole of the apportionment-districting-election restriction controversy previously immune to federal-court adjudication was considered and decided on the merits,588 and the Court’s subsequent rejection of the doctrine disclosed the narrowing in other areas as well.589

According to Justice Brennan, who delivered the opinion of the Court, “it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the ‘political question.”’590 Thus, the “nonjusticiability of a political question is primarily a function of the separation of powers.”591 “Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”592 Following a discussion of several areas in which the doctrine had been used, Justice Brennan continued: “It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers.”

587 369 U.S. 186 (1962).

588 Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Hadley v. Junior College District, 397 U.S. 50 (1970) (apportionment and districting, congressional, legislative, and local); Gray v. Sanders, 372 U.S. 368 (1963) (county unit system weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969) (geographic dispersion of persons signing nominating petitions).

589 Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doctrine continues to be sighted.

590 Baker v. Carr, 369 U.S. 186, 210 (1962). This formulation fails to explain cases like Moyer v. Peabody, 212 U.S. 78 (1909), in which the conclusion of the Governor of a State that insurrection existed or was imminent justifying suspension of constitutional rights was deemed binding on the Court. Cf. Sterling v. Constantin, 287 U.S. 378 (1932). The political question doctrine was applied in cases challenging the regularity of enactments of territorial legislatures. Harwood v. Wentworth, 162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649 (1894); Clough v. Curtis, 134 U.S. 361 (1890). See also In re Sawyer, 124 U.S. 200 (1888); Walton v. House of Representatives, 265 U.S. 487 (1924).

591 369 U.S. at 210.

592 369 U.S. at 211.

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”593

Powell v. McCormack.—Because Baker had apparently restricted the political question doctrine to intrafederal issues, there was no discussion of the doctrine when the Court held that it had power to review and overturn a state legislature’s refusal to seat a member-elect because of his expressed views.594 But in Powell v. McCormack,595 the Court was confronted with a challenge to the exclusion of a member-elect by the United States House of Representatives. Its determination that the political question doctrine did not bar its review of the challenge indicates the narrowness of application of the doctrine in its present state. Taking Justice Brennan’s formulation in Baker of the factors that go to make up a political question,596 Chief Justice Warren determined that the only critical one in this case was whether there was a “textually demonstrable constitutional commitment” to the House to determine in its sole discretion the qualifications of members.597 In order to determine whether there was a textual commitment, the Court reviewed the Constitution, the Convention proceedings, and English and United States legislative practice to ascertain what power had been conferred on the House to judge the qualifications of its members; finding that the Constitution vested the House with power only to look at the qualifications of age, residency, and citizenship, the Court thus decided that in passing on Powell’s conduct and character the House had exceeded the powers committed to it and thus judicial review was not barred by this factor of the political question doctrine.598 Although this approach accords with the “classicist” theory of judicial review,599 it circumscribes the political question doctrine severely, inasmuch as all constitutional questions turn on whether a governmental body has exceeded its specified powers, a determination the Court traditionally makes, whereas traditionally the doctrine precluded the Court from inquiring whether the governmental body had exceeded its powers. In short, the political question consideration may now be one on the merits rather than a decision not to decide.

593 369 U.S. at 217. It remains unclear after Baker whether the political question doctrine is applicable solely to intrafederal issues or only primarily, so that the existence of one or more of these factors in a case involving, say, a State, might still give rise to nonjusticiability. At one point, id. at 210, Justice Brennan says that nonjusticiability of a political question is “primarily” a function of separation of powers but in the immediately preceding paragraph he states that “it is” the intrafederal aspect “and not the federal judiciary’s relationship to the States” that raises political questions. But subsequently, id. at 226, he balances the present case, which involves a State and not a branch of the Federal Government, against each of the factors listed in the instant quotation and notes that none apply. His discussion of why guarantee clause cases are political presents much the same difficulty, id. at 222-26, inasmuch as he joins the conclusion that the clause commits resolution of such issues to Congress with the assertion that the clause contains no “criteria by which a court could determine which form of government was republican,” id. at 222, a factor not present when the equal protection clause is relied on. Id. at 226.

594 Bond v. Floyd, 385 U.S. 116 (1966).

595 395 U.S. 486 (1969).

596 Baker v. Carr, 369 U.S. 186, 217 (1962).

Chief Justice Warren disposed of the other factors present in political question cases in slightly more than a page. Since resolution of the question turned on an interpretation of the Constitution, a judicial function which must sometimes be exercised “at variance with the construction given the document by another branch,” there was no lack of respect shown another branch, nor, because the Court is the “ultimate interpreter of the Constitution,” will there be “multifarious pronouncements by various departments on one question,” nor, since the Court is merely interpreting the Constitution, is there an “initial policy determination” not suitable for courts. Finally, “judicially . . . manageable standards” are present in the text of the Constitution.600 The effect of Powell is to discard all the Baker factors inhering in a political question, with the exception of the textual commitment factor, and that was interpreted in such a manner as seldom if ever to preclude a judicial decision on the merits.

597 395 U.S. at 319.

598 395 U.S. at 519-47. The Court noted, however, that even if this conclusion had not been reached from unambiguous evidence, the result would have followed from other considerations. Id. at 547-48.

599 See H. Wechsler, supra at 11-12. Professor Wechsler believed that congressional decisions about seating members were immune to review. Id. Chief Justice Warren noted that “federal courts might still be barred by the political question doctrine from reviewing the House’s factual determination that a member did not meet one of the standing qualifications. This is an issue not presented in this case and we express no view as to its resolution.” Powell v. McCormack, 395 U.S. 486, 521 n.42 (1969). And see id. at 507 n.27 (reservation on limitations that might exist on Congress’ power to expel or otherwise punish a sitting member).

600 395 U.S. at 548-549. With the formulation of Chief Justice Warren, compare that of then-Judge Burger in the lower court. 395 F.2d 577, 591-596 (D.C. Cir. 1968).

The Doctrine Reappears.—Reversing a lower federal court ruling subjecting the training and discipline of National Guard troops to court review and supervision, the Court held that under Article I, 8, cl. 16, the organizing, arming, and disciplining of such troops are committed to Congress and by congressional enactment to the Executive Branch. “It 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 elective 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.”601 The suggestion of the infirmity of the political question doctrine was rejected, since “because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise.”602 In staying a grant of remedial relief in another case, the Court strongly suggested that the actions of political parties in national nominating conventions may also present issues not meet for judicial resolution.603 A challenge to the Senate’s interpretation of and exercise of its impeachment powers was held to be nonjusticiable; there was a textually demonstrable commitment of the issue to the Senate, and there was a lack of judicially discoverable and manageable standards for resolving the issue.604

601 Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar prudential concerns seem to underlay, though they did not provide the formal basis for, decisions in O’Shea v. Littleton, 414 U.S. 488 (1974), and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974).

602 413 U.S. at 11. Other considerations of justiciability, however, id. at 10, preclude using the case as square precedent on political questions. Notice that in Scheuer v. Rhodes, 416 U.S. 232, 249 (1974), the Court denied that the Gilligan v. Morgan holding barred adjudication of damage actions brought against state officials by the estates of students killed in the course of the conduct that gave rise to both cases.

603 O’Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The issue was mooted by the passage of time and was not thereafter considered on the merits by the Court. Id. at 816 (remanding to dismiss as moot). It was also not before the Court in Cousins v. Wigoda, 419 U.S. 477 (1975), but it was alluded to there. See id. at 483 n.4, and id. at 491 (Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief Justice Burger using political question analysis to dismiss a challenge to presidential action). But see id. at 997, 998 (Justice Powell rejecting analysis for this type of case).

Despite the occasional resort to the doctrine, the Court continues to reject its application in language that confines its scope. Thus, when parties challenged the actions of the Secretary of Commerce in declining to certify, as required by statute, that Japanese whaling practices undermined the effectiveness of international conventions, the Court rejected the Government’s argument that the political question doctrine precluded decision on the merits. The Court’s prime responsibility, it said, is to interpret statutes, treaties, and executive agreements; the interplay of the statutes and the agreements in this case implicated the foreign relations of the Nation. “But 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.”605

After requesting argument on the issue, the Court held that a challenge to a statute on the ground that it did not originate in the House of Representatives as required by the origination clause was justiciable.606 Turning back reliance on the various factors set out in Baker, in much the same tone as in Powell v. McCormack, the Court continued to evidence the view that only questions textually committed to another branch are political questions. Invalidation of a statute because it did not originate in the right House would not demonstrate a “lack of respect” for the House that passed the bill. “[D]isrespect,” in the sense of rejecting Congress’ reading of the Constitution, “cannot be sufficient to create a political question. If it were, every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible.”607 That the House of Representatives has the power and incentives to protect its prerogatives by not passing a bill violating the origination clause did not make this case nonjusticiable. “[T]he fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question.”608 The Court also rejected the contention that, because the case did not involve a matter of individual rights, it ought not be adjudicated. Political questions are not restricted to one kind of claim, but the Court frequently has decided separation-of-power cases brought by people in their individual capacities. Moreover, the allocation of powers within a branch, just as the separation of powers among branches, is designed to safeguard liberty.609 Finally, the Court was sanguine that it could develop “judicially manageable standards” for disposing of origination clause cases, and, thus, it did not view the issue as political in that context.610

604 Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its decision as perfectly consonant with Powell v. McCormack. Id. at 236-38.

605 Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221, 230 (1986). See also Davis v. Bandemer, 478 U.S. 109 (1986) (challenge to political gerry-mandering is justiciable). But see Vieth v. Jubelirer, 124 S. Ct. 1769 (2004) (no workable standard has been found for measuring burdens on representational rights imposed by political gerry-mandering).

606 United States v. Munoz-Flores, 495 U.S. 385 (1990).

607 495 U.S. at 390 (emphasis in original).

608 495 U.S. at 393.

609 495 U.S. at 393-95.

610 495 U.S. at 395-96.

In short, the political question doctrine may not be moribund, but it does seem applicable to a very narrow class of cases. Significantly, the Court made no mention of the doctrine while resolving issues arising from Florida’s recount of votes in the closely contested 2000 presidential election,611 despite the fact that the Constitution vests in Congress the authority to count electoral votes, and further provides for selection of the President by the House of Representatives if no candidate receives a majority of electoral votes.612

611 See Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000); and Bush v. Gore, 531 U.S. 98 (2000).

612 12th Amendment.