The Political Question Doctrine: Historical Background (Part 2)

The Political Question Doctrine: Historical Background (Part 2)

Legal Sidebari

The Political Question Doctrine: Historical
Background (Part 2)
June 14, 2022
This Legal Sidebar is the second in a six-part series that discusses the Supreme Court’s political question
doctrine, which instructs that federal courts should forbear from resolving questions when doing so would
require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on
powers the Constitution vests in the legislative or executive branches. By limiting the range of cases
federal courts can consider, the political question doctrine is intended to maintain the separation of
powers and recognize the roles of the legislative and executive branches in interpreting the Constitution.
Understanding the political question doctrine may assist Members of Congress in recognizing when
actions of Congress or the executive branch would not be subject to judicial review. For additional
background on this topic and citations to relevant sources, please see the Constitution of the United
States, Analysis and Interpretation.
The political question doctrine has its origins in the foundational case for judicial review, Marbury v.
Madison. Marbury involved a suit seeking to force Secretary of State James Madison to deliver a signed
commission to a newly appointed official, William Marbury. The commission had been signed by the
previous Administration but not delivered. Following the change in presidential Administrations, Madison
refused to deliver it. Among the issues presented in that case was whether the Court even had the
authority to adjudicate the legality of Madison’s refusal to deliver the commission. That question,
according to Chief Justice Marshall’s opinion for the Court, turned on “the nature” of the government
action in question. As the Court explained, “Questions, in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never be made in this court.” Thus, if the act of an
official is one in which the “executive possesses a constitutional or legal discretion, nothing can be more
perfectly clear that their acts are only politically examinable.” However, if a “specific duty is assigned by
law, and individual rights depend on the performance of that duty,” then injured individuals have a right
to resort to the courts. According to the Chief Justice, “[t]he power of nominating to the senate, and the
power of appointing the person nominated” were political questions, and fundamentally unreviewable. By
contrast, “if, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one;
in consequence of which a suit had been instituted against him, in which his defense had depended on his
being a magistrate, the validity of his appointment must have been determined by judicial authority.”
Ultimately, the Court concluded that the question of whether to deliver Marbury’s commission was not a
political one, as Marbury had a legal right in the appointment.
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Although the Court in Marbury opined that it could not decide “[q]uestions[] in their nature political,”
that case did not articulate the political question doctrine as the concept is understood today—a rule that
deprives the federal courts of jurisdiction to hear certain cases, including cases involving claims of
constitutional rights. Rather, Marbury indicated only that some decisions are inherently discretionary and
are therefore immune from judicial scrutiny because there is no enforceable legal right at stake.
In the years following Marbury, the Court invoked the political question doctrine when deferring to the
factual or policy determinations of the other branches in certain categories of cases. For example, the
Court held in the 1827 case Martin v. Mott that the legality of the President’s decision to call out the
militia in response to a supposed national emergency was beyond judicial scrutiny. Similarly, in Williams
v. Suffolk Insurance Co., an 1839 case raising the question of who ruled the Falkland Islands, the Court
concluded that the executive had the final word on questions of foreign sovereignty. In another case, the
Court concluded that this deference in the realm of foreign affairs applied to the President’s authority to
enter into treaties. In several cases from the 19th and early 20th centuries, the Court also expressed a
willingness to defer to Congress with respect to certain legal questions. For example, the Court concluded
that the judiciary was required to defer absolutely to congressional recognition of Indian tribes, as well as
congressional determinations of when wars begin and when they conclude.
In 1849, in the case Luther v. Borden, the Court expanded the political question doctrine and took another
step toward the modern judicial approach to political questions. Luther arose out of a rebellion against the
government of Rhode Island due to the state constitution, which significantly limited the right to vote.
Rhode Island citizens who had become dissatisfied with the existing regime held a constitutional
convention, called elections, and declared the winners the valid government of Rhode Island. When the
existing “charter government” opposed these efforts and declared the conduct illegal, the newly elected
governor of the rebel government, Thomas Dorr, gathered an armed force to assert the legitimacy of his
government and its constitution. In response, the charter government called the militia and declared
martial law. In the course of events, charter government agents broke into plaintiff Luther’s house in order
to arrest him for his support of Dorr. Luther then sued for trespass. The question of the legitimacy of the
home break-in necessarily gave rise to the question of which government—the charter government or the
rebel government—was the legitimate government of the state at the time of the break-in.
Luther alleged that the charter government that authorized the break-in was unconstitutional, in part
because the voting restrictions in the Rhode Island constitution violated the U.S. Constitution’s Guarantee
Clause, which states that “[t]he United States shall guarantee to every State in this Union a Republican
Form of Government.” The Supreme Court refused to reach the question, instead concluding that the
question of which government was lawful, and whether a government was a “republican” one, was a
political question for Congress to decide and entirely outside the purview of the judiciary. In an opinion
by Chief Justice Roger Taney, the Court held that courts were not institutionally competent to judge
republicanism or governmental legitimacy because judicial standards were lacking. Further, an attempt to
judge whether a government was legitimate could undermine other branches and ultimately cast all the
acts of the questioned government into doubt. The Court concluded that while a court should “always be
ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its
appropriate sphere of action.” Since deciding Luther, the Court has routinely held that cases involving the
Guarantee Clause present nonjusticiable political questions.

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Author Information

Joanna R. Lampe

Legislative Attorney

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