Kara Sears
The political question doctrine in constitutional law is a concept that concerns the types of cases or controversies that a court can decide. The doctrine holds that federal courts should not hear cases that deal directly with issues that the Constitution makes the sole responsibility of the Executive or Legislative Branch. The doctrine can be traced back to the Supreme Court ruling in Marbury v. Madison (1803), where Chief Justice John Marshall distinguished between the US Secretary of State's legal work and discretionary political tasks. The six factors that determine whether a case qualifies as a political question were established in Baker v. Carr (1962).
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What You'll Learn
Justiciability and nonjusticiability
Justiciability is a concept in constitutional law that determines the types of cases or controversies that a court can decide on. The idea of justiciability is closely related to the political question doctrine, which prevents federal courts from making decisions on political questions. In the US, such questions are meant for Congress or the President to decide on.
The political question doctrine is rooted in case law, with its origins traced back to the landmark Supreme Court ruling in Marbury v. Madison (1803). In this case, Chief Justice John Marshall distinguished between the US Secretary of State's legal work and purely discretionary political tasks. Marshall argued that courts should generally not hear cases that involve political questions without implicating individual rights. The doctrine has since been applied in cases that do implicate individual rights.
The Supreme Court further expounded on the political question doctrine in Baker v. Carr (1962), where it held that federal courts should not hear cases that deal directly with issues that the Constitution makes the sole responsibility of the Executive Branch and/or the Legislative Branch. The Court identified six factors that determine when courts should refrain from deciding on cases:
- A textually demonstrable constitutional commitment of the issue to a coordinate political department;
- A lack of judicially discoverable and manageable standards for resolving the issue;
- The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
- The impossibility of a court's undertaking independent resolution without expressing a lack of respect due to coordinate branches of government;
- An unusual need for unquestioning adherence to a political decision already made;
- The potentiality of embarrassment from multifarious pronouncements by various departments on one question.
A court must find that at least one of these factors directly applies to a case before it can dismiss it as a political question. The application of these factors can vary depending on the issue involved, and some commentators have argued that there is no clear definition of what constitutes a political question.
In practice, the political question doctrine has been applied in various contexts, including in cases involving the US Constitution's Guarantee Clause, treaties, and the enactment or ratification of laws. For example, in Luther v. Borden (1849), the Supreme Court refused to identify the legitimate government of Rhode Island during the Dorr Rebellion, citing the Guarantee Clause as a reason for nonjusticiability. In cases involving treaties, the Court has treated questions of constitutional authority and the lapse of treaties as political questions, while interpreting the domestic effects of treaties.
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The Guarantee Clause
Critics argue that the Court should utilize the Guarantee Clause to protect state autonomy and shield individuals from state overreach. The Guarantee Clause can be seen as a protection against anti-republican developments, such as election manipulation, and a safeguard for foundational aspects of a republican form of government, including self-governance, political equality, and political accountability.
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The Supreme Court's role
The Supreme Court plays a pivotal role in the political question doctrine, a concept that concerns the type of case or controversy that a court can decide. The doctrine is rooted in case law and the Supreme Court's interpretation of the US Constitution.
The doctrine is based on the idea that there are non-judicial questions that courts are not suited to answer and that the judiciary may lack the objective standards to resolve certain matters. It is meant to prevent federal courts from making decisions they shouldn't and to protect the separation of powers. The Supreme Court must decide whether there are any cases they cannot decide under this doctrine.
The roots of the doctrine can be traced back to the landmark case of Marbury v. Madison in 1803, where Chief Justice John Marshall distinguished between the legal work of the US Secretary of State and purely discretionary political tasks. Marshall argued that courts should generally not hear cases involving political questions without implicating individual rights. This case established the principle of judicial review, allowing courts to decide whether a law is constitutional.
In Baker v. Carr 1962, the Supreme Court refined the political question doctrine by providing clear criteria for what constitutes a political question. The Court identified six factors used to determine when courts should refrain from deciding cases:
- A textually demonstrable constitutional commitment of the issue to a coordinate political department
- A lack of judicially discoverable and manageable standards for resolving the issue
- The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion
- The impossibility of a court's independent resolution without expressing a lack of respect due to coordinate branches of government
- An unusual need for unquestioning adherence to a political decision already made
- The potentiality of embarrassment from multifarious pronouncements by various departments on one question
The Supreme Court has applied this doctrine in several cases, including Luther v. Borden (1849), where the Court refused to identify the legitimate government of Rhode Island during the Dorr Rebellion, and bin Ali Jaber v. United States (2017), where the plaintiffs filed a lawsuit under the Torture Victim Protection Act of 1991 after a US drone strike killed five civilians. The Court dismissed the plaintiffs' claims, citing the political question doctrine.
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The President's discretionary powers
Discretionary powers are the powers to exercise discretion, free of judiciary and legal issues, over which the court cannot intervene. They are granted to the President and governor to act as they see fit on specific topics and are delegated to them. These powers are distinct from administrative powers, which enforce judicial laws. Discretionary powers are granted to address complex problems that cannot be easily deciphered or forecasted within the scope of basic rules.
The President of India, for example, has discretionary powers that are not explicitly mentioned in the Indian Constitution. However, these powers can be inferred from carefully reading the provisions related to the President. One such power is the ability to exercise suspensive veto, where the President can keep a bill pending for an indefinite period without ratifying, rejecting, or returning it. This inaction effectively prevents the bill from becoming an act. The President also has the right to seek information from the Prime Minister regarding the administration of the affairs of the union and can warn or encourage the Council of Ministers (CoM) in exercising its power. Additionally, the President can summon each House of Parliament to meet at a time and place of their choosing, ensuring that no more than six months intervene between sessions.
In exceptional cases, the President's discretionary powers may override the advice of the CoM. For instance, the President appoints the Prime Minister, and when no party or coalition secures a clear majority, the President can appoint a leader who, in their opinion, can muster majority support. The President can also impose 'President's Rule' in states based on the Governor's report, as seen in the 2016 Supreme Court case reinstating the dismissed Uttarakhand government.
While the President's discretionary powers are essential for maintaining political stability and constitutional integrity, judicial rulings have restricted their scope to prevent arbitrary use and ensure accountability. Notable cases include S. R. Bommai v. Union of India (1994), which limited the misuse of Article 356 by making 'President's Rule' subject to judicial review, and Shamsher Singh v. State of Punjab (1974), which reaffirmed that the President must generally act on ministerial advice.
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The role of Congress
Congress, as a coordinate branch of government, plays a crucial role in the political question doctrine. This doctrine holds that federal courts should refrain from deciding issues that are better suited for resolution by other political branches, such as Congress. The doctrine aims to protect the separation of powers and ensure the competency of courts.
In the United States, the political question doctrine is based on the idea that certain issues are constitutionally committed to the political branches, such as Congress, and are not suitable for judicial resolution. The doctrine applies when there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department", as stated in Baker v. Carr 1962. This means that if the Constitution explicitly grants Congress the power to address a certain issue, then the courts should not interfere.
Congress, as the legislative branch, has the authority to make laws and policies that interpret the Constitution. When a political question arises, Congress has the power to address it through legislation or other means. For example, in the case of bin Ali Jaber v. United States (2017), the plaintiffs filed a lawsuit under the Torture Victim Protection Act of 1991. While the court dismissed the claims, Congress played a role in establishing the Act, which was at the centre of the case.
Additionally, Congress has the power to impeach, as stated in Article I, Section 2 of the Constitution. This power further highlights the role of Congress in addressing political questions that involve the conduct of public officials.
In summary, the role of Congress in the political question doctrine is crucial. Congress, as a coordinate political department, has the authority to address issues that are constitutionally committed to it by the text of the Constitution. By doing so, Congress helps maintain the separation of powers and ensures that the courts do not overstep their boundaries.
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