The Political Question Doctrine: Congressional Governance and Impeachment as Political Questions (Part 5)

The Political Question Doctrine: Congressional Governance and Impeachment as Political Questions (Part 5)

Legal Sidebari

The Political Question Doctrine:
Congressional Governance and Impeachment
as Political Questions (Part 5)
June 14, 2022
This Legal Sidebar is the fifth 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 Supreme Court has applied the political question doctrine to cases involving the internal governance
of Congress, though recent decisions have construed the doctrine narrowly in this context. In the pre-
Baker case Marshall Field & Co. v. Clark, plaintiffs challenging a tariff law contended that the law was
invalid because a section of the bill passed by Congress was omitted from the final version of the law
signed by the President. The Court concluded that it could not adjudicate this issue. Because of the
“respect due to a co-ordinate branch of the government,” the Court had to take as “conclusive” the fact
that the act was attested by the signatures of the presiding officers of the houses of Congress and
approved by the President. Baker explained that Clark signified the need for “respect” to coequal
branches and for “finality and certainty” about statutes. A few cases since Baker have added color to the
concept of “respect” in this context.
For example, in Powell v. McCormack, an individual elected to the House of Representatives challenged a
House resolution excluding him from his seat in Congress. Although the Member-elect met the age and
citizenship requirements in Article I, Section 2, the House found that he had misrepresented travel
expenses and made illegal salary payments to his wife. The defendants—Members and officers of the
House—argued that the text of the Constitution, specifically Article I, Section 5, gave Congress exclusive
authority to judge the qualifications of its own Members, so Congress could determine that the Member
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was unqualified. The Supreme Court held that the case could go forward and that the Member-elect was
entitled to relief. On the question of justiciability, the Court explained that, despite the text the defendants
cited from Article I, Section 5, there was no “textually demonstrable” commitment of this constitutional
question to another branch. At most, the Constitution gave Congress the power to judge the
“qualifications expressly set forth in the Constitution,” not the power to set new qualifications. Nor did
the Court conclude that “the respect due co-ordinate branches” barred hearing the case, even though it
was interpreting the Constitution “in a manner at variance with the construction given the document by
another branch.” In the view of the Powell Court, constitutional conflicts with other branches were
inevitable under the constitutional system and were no excuse for avoiding a case where there existed
“judicially manageable standards” sufficient to judge the question.
Similar principles animated the Court’s decision in INS v. Chadha. There, the Court considered the
constitutionality of a provision of the Immigration and Nationality Act authorizing one house of
Congress, by resolution, to invalidate a decision of the executive branch to suspend the deportation of an
alien. The United States argued that Chadha presented a nonjusticiable political question, because Article
I granted Congress the power to “establish a uniform Rule of Naturalization,” providing it with
unreviewable authority over the regulation of aliens. As in Powell, the Court rejected the application of
the political question doctrine. The Court, in an opinion by Chief Justice Warren Burger, observed that
what was at issue was not Congress’s plenary authority over aliens but rather whether it had chosen a
“constitutionally permissible means of implementing that power.” Because that latter question was
squarely within the judiciary’s purview, the political question doctrine did not bar consideration of the
case, regardless of the fact that judicial review limited Congress’s authority as a practical matter.
Respect for the coordinate branches also did not prevent the Court from reaching the merits of the dispute
in United States v. Munoz-Flores, which concerned whether a federal statute violated the Origination
Clause of the Constitution, a provision that requires revenue-raising legislation to originate in the House
of Representatives. In that case, Munoz-Flores challenged as unconstitutional a special assessment under
the Victims of Crime Act of 1984 because the Act was “for raising revenue,” but it had not originated in
the House of Representatives. The government objected that hearing the case expressed a “lack of
respect” for the House: In the government’s view, the House made an unreviewable determination that the
Act was not for the purpose of raising revenue when it passed the legislation. The Court rejected that
argument, holding that Munoz-Flores’s challenge was no different than any other constitutional challenge
to a law involving separation of powers, and judicial review did not evidence a “lack of respect.”
In 1993, the Court applied the political question doctrine to a judicial challenge to impeachment
proceedings. In Nixon v. United States, a former federal judge challenged his removal by the Senate. He
argued that the Senate proceedings used to convict him—which allowed a committee of Senators, rather
than the whole Senate, to hear evidence against him after he was impeached by the House—violated the
constitutional requirement that the Senate “try all Impeachments.” In an opinion by Chief Justice
Rehnquist, the Court held that Nixon presented a nonjusticiable political question.
A few primary considerations motivated the Court’s conclusion. First, the Court noted that the text of the
Constitution gives the Senate “sole” authority to try impeachments, which, according to the Court,
amounted to a sufficient “textual commitment” of the question as to what try meant to a coordinate
department. Second, the Court noted that the existence of a firm textual commitment was strengthened by
a lack of “judicially manageable standards” in the vagueness of the word try. The Court contrasted that
vague term with the concrete requirement that convictions require a two-thirds vote, concluding that the
Senate was intended to have discretion over the precise procedures for impeachments. The Court
distinguished the alleged “textual commitment” that was insufficient in Powell v. McCormack,
maintaining that the textual commitment to the Senate of defining try did not undermine any other
provision to the Constitution, such as the enumerated qualifications set forth in Article I, Section 5, that
were at stake in Powell. Altogether, the Court concluded that without a judicially manageable standard to

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limit the Senate’s authority, such as the specific textual rules on qualifications that were present in Powell,
it could not overturn the Senate’s judgment.

Author Information

Joanna R. Lampe

Legislative Attorney

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