The Political Question Doctrines

Abstract

Much that is said about the political question doctrine is wrong. Commentators, lower courts, and sometimes the Supreme Court in its dicta err about the holding, reasoning, and underlying rationale of the Court’s cases that have applied it. The doctrine as the Supreme Court has developed it in those cases is not a limit on the subject matter jurisdiction of the federal courts. It is, however, a limit on the judicial power in its relations with political power. The doctrine has two branches. In one, courts treat as conclusive certain decisions by political actors that apply legal principles to particular facts. The leading example is recognition of states and governments, as to which the courts are bound by non-judicial decisions. In the other branch, the mandatory remedies that courts may give are limited in the extent to which they may direct political actors with respect to highly sensitive discretionary decisions, mainly those involving military and security matters. The doctrine’s rationale is that in some unusual circumstances the law commits final decision of a legal question to a non-judicial decision maker, as with Senate impeachment trials, and that the distinction between judicial and political power implies some limits on the extent to which the courts can command the exercise of the latter. Some Justices have identified substantive legal rules that under certain circumstances are not susceptible of judicial enforcement because such enforcement would require the courts to make political judgments, but the Court has not decided any case on that basis. The doctrine has in the past been broader than it is today. In some earlier cases, the Court found that the vindication of certain interests connected to political sovereignty was beyond judicial power, and the limits on directive remedies were tighter in the past than they are now. A substantial number of lower court decisions have seriously misunderstood the doctrine by treating it as a limit on subject matter jurisdiction. In the name of the political question doctrine, lower courts have refused to reach the merits of claims, especially damages claims against executive officers and government contractors related to national-security decisions, on grounds that have no foundation in the Court's doctrine or Article III.