The Hated Political Question Doctrine Is Crucial In a Constitutional Republic
Why courts shouldn't write checks they can't cash
One of the most famous anecdotes in American constitutional law concerns Worcester v. Georgia, which invalidated a Georgia law that prohibited Indians from being present on non-Indian territory. “Mr. Chief Justice Marshall”, President Andrew Jackson said, “has made his decision. Now let him enforce it!”
Now to be clear, Worcester was enforceable— the courts could simply issue writs of habeas corpus to spring any Indians whom Georgia dared to try and imprison under its unconstitutional statute. (Worcester did eventually get out of prison, although it took awhile. But President Jackson used federal power to do what Georgia could not do under Worcester, and brutally expelled the Cherokees from Georgia.) President Jackson was nonetheless onto something, a principle that is fundamental to any court system in a democratic society. And it happens to be a principle that everyone in constitutional law and most of the law nerd public seems to hate. The principle finds its way into a legal doctrine, the political question doctrine.
The political question doctrine is a bit misnamed. The courts decide questions that touch on politics all the time. Rather, it is about what are called the “political branches” of the government, i.e., the parts of the government that are staffed with people who win elections, or who serve at the service of those who win elections. Judges, in contrast, are unelected and (in the federal system) serve for life. The entire point of the unelected judiciary is to be independent of politics. (Whether it succeeds at that is, of course, another matter entirely.) But the point of the political question doctrine is “some issues are either left to politics, or are better decided by the political process”.
That should make perfect sense. Indeed, we have seen what happens when courts get involved in purely political issues. Take the infamous case of Bush v. Gore, where the members of the Supreme Court obviously voted their partisan political commitments and then cloaked those commitments in legalese that they did not really believe in. Bush v. Gore is exactly the sort of thing the political question doctrine is designed to avoid— the law is malleable enough that in a case where judges care about the political outcome, they can ensure it. And that’s the opposite of what an independent judiciary is supposed to be doing. When unelected judges become politicians, they are decidedly inferior to the elected kind, because the public has no real way to remove them from office or to punish them for making choices out of step with the public.
The political question doctrine is the judiciary’s response to this problem. Some things, says the doctrine, are relegated to the political process. They are to be decided by politicians or the public, not judges.
That’s the theory. But I can show you practical examples of how this works. The best example is the war power. Now, I happen to agree with a certain critique of the anti-war Left that points out that we routinely violate the constitutional provisions governing warfare. While the President is the Commander-in-Chief of the armed forces, only Congress is supposed to declare war, make rules for the armies and for captures, and enforce the law of nations. That suggests a clear division of labor— Congress decides whether we go to war; the President implements Congress’ war policy.
Unfortunately, Congress has abdicated this power. The last declared war was World War II. Congress has “authorized military force” (which is not provided for in the Constitution) several times since then, but many US conflicts have been prosecuted by US Presidents with no congressional authorization at all. (By the way, if you wonder why we now unconstitutionally “authorize military force” rather than constitutionally “declare war”, it has to do with our unwillingness to admit when we violate international law, which we do repeatedly. Under international law only the UN Security Council can authorize a member state to declare war unless the action is in self defense. But our lawyers have claimed, weakly, that military force “short of a declaration of war” isn’t a violation.)
So from a constitutional standpoint, we are flagrantly violating the text of the Constitution in how we conduct our military policy. And yet, you know what would be worse than Presidents deciding our military policies? Yep, you got it, the courts doing it! In Schlesinger v. Holtzman, Rep. Elizabeth Holtzman, at the time a young Lefty congresswoman (the AOC of her day) and a staunch Vietnam War opponent, sued for an injunction against Nixon’s policy of bombing Cambodia. She struck out with one Supreme Court Justice, Thurgood Marshall, but tried again with another one, William O. Douglas. Douglas issued an injunction against US planes bombing Cambodia.
Now, to be clear, not only was the bombing of Cambodia unconstitutional, but it was outrageous. It roped a relatively powerless, neutral state into the Vietnam War, and eventually paved the way for the chaos that brought the genocidal Pol Pot to power. Nonetheless, nobody in three decades elected William O. Douglas to even be dog catcher. He had a lifetime appointment and indeed had been on the Supreme Court 34 years, having been appointed by President Roosevelt before World War II. Nixon and his people were accountable to the public for their decisions in Cambodia, and indeed had just won a resounding reelection. Douglas had no democratic mandate at all.
Douglas’ injunction was overruled by the 8 other members of the Supreme Court, led by Marshall (who probably held personal views on the Vietnam War similar to Douglas and to Holtzman). So why couldn’t the Court enforce the Constitution and stop the bombing of Cambodia? Simple— the courts can’t run war policy. What would have happened had the Court affirmed or let stand Douglas’ order? Well, the first thing that would have happened is Richard Nixon would have ignored it. Why wouldn’t he? What is Douglas going to do? Hold Nixon in contempt? Seek to imprison him?
This simple point about power is at the center of the political question doctrine, and gets back to Andrew Jackson’s rhetorical question. Courts command small police forces and sometimes small jail facilities- they can subpoena civilians to court and jail them for contempt. But their orders that bind the President and strike down laws of Congress aren’t obeyed because people fear the Court’s paramilitary power; they are obeyed because politicians respect the legitimate role of the courts. Joe Biden doesn’t just go ahead and forgive student loans after the Supreme Court says he can’t, because he respects the role of the Supreme Court to decide such things. But Presidents guard the war power much more jealously, and are not going to give it up to a court.
And disobedience of court rulings would cause the whole system to teeter. Indeed, had Douglas’ order stood, once President Nixon refused to comply with Douglas’ order and nothing untoward happened, it would embolden politicians to ignore more court rulings. After all, the President commands and controls the military. The courts do not. Indeed, there’s even an outside chance of us ending up in a very dark place where the President is using military power to ensure court decisions do not get enforced. Think that is fanciful? It almost happened in the Civil War, after pro-slavery Chief Justice Taney issued habeas rulings that President Abraham Lincoln didn’t like. Lincoln gave consideration to jailing Taney, but ultimately just decided to ignore Taney’s rulings. Even that was somewhat dangerous, and thankfully did not catch on after the war.
So courts shouldn’t issue rulings they really don’t have the power to enforce. But there’s a second issue here as well, besides power: competence. I don’t think the bombing of Cambodia was particularly important to United States national security, but once the Supreme Court has the power to say who we can and cannot bomb, they absolutely could make rulings that would endanger our national security. You can’t pick this target because there are too many civilians and it would violate international law. You can’t attack this country because its connection to the attack against the United States is unproven. You can’t use this weapon because it kills too many civilians or it is cruel. Etc.
Courts just can’t make these calls. There’s nothing about a commission as a federal judge that confers any competence at running the military. So there are good reasons not to place these decisions in the hands of judges. Armed with that power, they will make bad rulings that may compromise our security. Additionally, they may just make political rulings, standing in the way of the military policies of the elected President of the other party.
We had a recent example of this with COVID vaccines in the military. Our military commanders, quite reasonably, wanted to reduce the likelihood of troops getting COVID on the battlefield. Some lower federal courts, staffed by Republican judges who hate Joe Biden, struck it down. None of those judges knew the slightest about what the battlefield conditions were or whether it was epidemiologically sound to block a vaccine mandate. Their action could have literally not only killed troops but compromised our security by taking people out of the theater with COVID infections. They weren’t thinking about any of this because it was an opportunity to stick it to Biden and fight the culture war. Thankfully the Supreme Court reversed them.
Military policy is probably the best example of where courts lack competence, but it isn’t the only area. President Carter decided to recognize China and de-recognize Taiwan as the legitimate government of China. The Supreme Court correctly declined to overturn this in Goldwater v. Carter. Just like military policy, diplomacy and national security policy are not core competences of courts. And at any event, the courts had little power to actually force Carter to treat Taiwan better or China worse— he could have easily just ignored any adverse ruling and conducted whatever foreign policy he wanted to. How would the Supreme Court ever, for instance, be able to restrict what signs were installed at a diplomatic mission in Beijing?
Another example of a political question is impeachment. The Constitution says that officials can be impeached by vote of the House and supermajority vote of the Senate for “high crimes and misdemeanors”. Who determines this? The Senate. The main case involved a federal judge (Nixon v. United States, but the Nixon was Judge Walter Nixon, not the other Nixon), but obviously presidential impeachments were also of concern here. Obviously, the courts overturning a Senate conviction of a President and restoring a President to power would be the ultimate political act, a sort of Bush v. Gore on steroids. Courts don’t have that power.
There are still more examples. Pardons, for instance, are textually committed to the executive branch, and the whole point of pardons is to allow the elected President, accountable to the voters, to overrule the judicial branch’s excesses. You can’t allow the judiciary to be able to nullify that judgment, or pardons would be worthless. Gerrymandering may be the most controversial example of a political question, but that actually is a good example of where constitutional text supplies the result— the Constitution says that the United States shall guarantee every state a republican form of government. That’s not a prohibition on states being anti-republican, and it’s a hortatory call on Congress to enact the proper guarantees. It is up to the political branches. (I would say the Supreme Court’s Guarantee Clause cases, including the controversial Rucho v. Common Cause, hold up better than you might think. If you look at state court litigation over reapportionment, the results invariably divide on partisan lines as judges try and get their favorite parties elected. The judiciary is diminished by this spectacle.)
The key point is that there are certain things that either the courts can’t decide, or aren’t competent to decide, or both. And keeping that stuff out of courts helps keep the courts from becoming completely partisan actors, albeit unelected ones who cannot be held accountable for their actions.
Now, there are two objections to my position. The first involves constitutional text. “Doesn’t this mean that certain aspects of the Constitution become unenforceable? Aren’t you therefore trashing the Constitution?” I have several answers to this. First, I am not convinced the Constitution prohibits a political question doctrine. The normal justification for constitutional litigation is Article III of the Constitution, which grants the “judicial power” to the judiciary. But are all constitutional questions part of that judicial power? Certainly something like impeachment doesn’t seem to be— the adjudication of impeachment is committed to the Senate. Pardons are committed to the executive. Wars are committed to the legislature and the executive. Doesn’t that suggest that in fact, to follow the Constitution, there must be a dividing line between judicial and non-judicial constitutional questions?
Second, and more broadly, you shouldn’t worship the Constitution. Consider President Lincoln’s response to one of Taney’s habeas orders during the civil war: “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?” The Constitution is a law. It’s a great law. It’s an important law. It’s our charter. But it’s just a law. We don’t rigidly enforce any other law. The cop doesn’t give you a ticket for speeding if you are rushing your wife to the hospital. Even laws prohibiting the greatest harms (such as murder laws) are subject to justification, defense, and mental state defenses. The notion that there’s no situation we can ever say, not even that the Constitution is going to be violated, but just that judges aren’t going the ones to enforce a certain provision, is just idolatry directed at the Constitution, and is false as any other form of idolatry.
Third, it’s not like the judiciary is the only organ that can enforce the Constitution. For instance, the American public had every right to protest the bombing of Cambodia, demand that it stopped, and punish the Republicans for conducting it. If the Senate blows an impeachment vote, the public can punish Senators for it. If the President pardons someone who shouldn’t be pardoned, the public can punish the President’s party in the next election. The public has the power to enforce constitutional provisions even if judges can’t.
The other objection, I think, is somewhat more substantial. Some cases really seem to be wrongly decided and overly deferential, especially towards the military. Korematsu v. United States seems the paradigmatic example here, upholding a curfew on Japanese people that was part of President Roosevelt’s racist Japanese internment policy. The Supreme Court deferred to military assurances about national security, which turned out to be lies being put forth as a cover for rank bigotry.
And while I share everyone’s view of how bad a decision Korematsu was, I also have to say, exactly what was going to happen had the Court gone the other way? I think the decision had already made to at least let the “loyal” Japanese out no matter what the court ruled (allegedly disloyal Japanese were actually held without charges well past the end of the war!), but if Roosevelt really believed in the policy as a part of his prosecution of the war, was he going to let folks he saw as subversives out onto the streets because the Supreme Court ordered him to? (This same calculation may have been in play in another outrageous World War II era case, Ex Parte Quirin, which held that Nazi sabatours who could have easily been tried in civilian courts could be railroaded through a military commission instead. Roosevelt apparently told aides and may have even told the Court that he was not going to obey the ruling if the Court had issued a writ of habeas corpus.)
This notion that if the courts step in with courageous rulings, even when courageous rulings are called for, that they will magically override the political process and do so at no cost to the judiciary is fanciful. The political question doctrine is the bulwark that protects the rest of the judicial system, and our treasured practice of judicial constitutional review, from those who might overreach with asserted judicial power. It is a key part of our constitutional system.
I think what you're really saying is that the Judiciary, like any body, should self-restrain where it makes sense. Trying to insert the judiciary into diplomacy and war makes little sense; I think the US already struggles with diplomacy because all of our ambassadors require Senate approval, and all of our treaties too.
Just like Congress: just because they can do something does not mean they should. Should Congress really tell POTUS exactly how to clean up the air, down to the individual regulatory actions by plant? No, of course not. Congress should give guidelines and let the federal government decide how to enforce them, and if they don't agree amend legislation.
Judgment is important, we should think on how we do things
>When unelected judges become politicians, they are decidedly inferior to the elected kind, because the public has no real way to remove them from office or to punish them for making choices out of step with the public.
Every so often, though, this turns out to be a really good thing.
>So why couldn’t the Court enforce the Constitution and stop the bombing of Cambodia? Simple— the courts can’t run war policy. What would have happened had the Court affirmed or let stand Douglas’ order? Well, the first thing that would have happened is Richard Nixon would have ignored it. Why wouldn’t he? What is Douglas going to do? Hold Nixon in contempt? Seek to imprison him?
Douglas may do what Douglas pleases -- if he were to judge it wise to withhold any action on the subject until after the end of active conflict or until Nixon had left office, that would be his prerogative. Like police officers, executives do what they see fit in the moment, and the consequences are generally reckoned afterwards. Yet if he were to judge the error so severe as to necessitate immediate intervention such as holding the President in contempt, that would also be his prerogative. it's sort of the converse of Jackson's ultimatum: "Send the marshals, and let him resist them." Obviously a rather bold thing to do, but if a President were, say, ordering brutal massacre of civilians for unclear gain, well, a bit of that we must apparently tolerate according to the court, but there must be some magnitude of slaughter at which you would agree it behooves anyone with a chance to take action.
>So courts shouldn’t issue rulings they really don’t have the power to enforce.
I think this is completely wrong. Courts must never shrink from issuing orders that they deem just on account of some nebulous doubt as to the obedience of some party or another to the decision. Your notion here is anxious, cowardly, despondent, and creates an ever-diminishing sphere of power for the court, as no lost power could ever be clawed back by timid judges following your rule. Thus "ratcheting" takes place.