Annotation 12 - Article III

Political Questions

It may be that there will be a case assuredly within the Court's jurisdiction presented by parties with standing in which adverseness and ripeness will exist, a case in other words presenting all the qualifications we have considered making it a justiciable controversy, which the Court will nonetheless refuse to adjudicate. The ''label'' for such a case is that it presents a ''political question.'' Although the Court has referred to the political question doctrine as ''one of the rules basic of the federal system and this Court's appropriate place within that structure,'' 510 a commentator has remarked that ''[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms known to the law. The origin, scope, and purpose of the concept have eluded all attempts at precise statements.'' 511 That the concept of political questions may be ''more amenable to description by infinite itemization than by generalization'' 512 is generally true, although the Court's development of rationale in Baker v. Carr 513 has changed this fact radically, but the doctrine may be approached in two ways, by itemization of the kinds of questions that have been labeled political and by isolation of the factors that have led to the labeling.

Origins and Development .--In Marbury v. Madison, 514 Chief Justice Marshall stated: ''The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.'' 515  

But the doctrine was asserted even earlier as the Court in Ware v. Hylton 516 refused to pass on the question whether a treaty had been broken. And in Martin v. Mott, 517 the Court held that the President acting under congressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But it was in Luther v. Borden 518 that the concept was first enunciated as a doctrine separate from considerations of interference with executive functions. This case presented the question of the claims of two competing factions to be the only lawful government of Rhode Island during a period of unrest in 1842. 519 Chief Justice Taney began by saying that the answer was primarily a matter of state law that had been decided in favor of one faction by the state courts. 520  

Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the clause empowering the United States to guarantee to every State a republican form of government, 521 and this clause committed determination of the issue to the political branches of the Federal Government. ''Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must neccessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.'' 522 Here, the contest had not proceeded to a point where Congress had made a decision, ''[y]et the right to decide is placed there, and not in the courts.'' 523  

Moreover, in effectuating the provision in the same clause that the United States should protect them against domestic violence, Congress had vested discretion in the President to use troops to protect a state government upon the application of the legislature or the governor. Before he could act upon the application of a legislature or a governor, the President ''must determine what body of men constitute the legislature, and who is the governor. . . .'' No court could review the President's exercise of discretion in this respect; no court could recognize as legitimate a group vying against the group recognized by the President as the lawful government. 524 Although the President had not actually called out the militia in Rhode Island, he had pledged support to one of the competing governments, and this pledge of military assistance if it were needed had in fact led to the capitulation of the other faction, thus making an effectual and authoritative determination not reviewable by the Court. 525  

The Doctrine Before Baker v. Carr .--Over the years, the political question doctrine has been applied to preclude adjudication of a variety of issues. Certain factors appear more or less consistently through most but not all of these cases, and it is perhaps best to indicate the cases and issues deemed political before attempting to isolate these factors.

(1) By far the most consistent application of the doctrine has been in cases in which litigants asserted claims under the republican form of government clause, 526 whether the attack was on the government of the State itself 527 or on some manner in which it had acted, 528 but there have been cases in which the Court has reached the merits. 529  

(2) Although there is language in the cases that would if applied make all questions touching on foreign affairs and foreign policy political, 530 whether the courts have adjudicated a dispute in this area has often depended on the context in which it arises. Thus, the determination by the President whether to recognize the government of a foreign state 531 or who is the de jure or de facto ruler of a foreign state 532 is conclusive on the courts, but in the absence of a definitive executive action the courts will review the record to determine whether the United States has accorded a sufficient degree of recognition to allow the courts to take judicial notice of the existence of the state. 533 Moreover, the courts have often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized. 534 Simi larly, the Court when dealing with treaties and the treaty power has treated as political questions whether the foreign party had constitutional authority to assume a particular obligation 535 and whether a treaty has lapsed because of the foreign state's loss of independence 536 or because of changes in the territorial sovereignty of the foreign state, 537 but the Court will not only interpret the domestic effects of treaties, 538 it will at times interpret the effects bearing on international matters. 539 The Court has deferred to the President and Congress with regard to the existence of a state of war and the dates of the beginning and ending and of states of belligerency between foreign powers, but the deference has sometimes been forced. 540  

(3) Ordinarily, the Court will not look behind the fact of certification that the standards requisite for the enactment of legislation 541 or ratification of a constitutional amendment 542 have in fact been met, although it will interpret the Constitution to deter mine what the basic standards are, 543 and it will decide certain questions if the political branches are in disagreement. 544  

(4) Prior to Baker v. Carr, 545 cases challenging the distribution of political power through apportionment and districting, 546 weighed voting, 547 and restrictions on political action 548 were held to present nonjusticiable political questions.

From this limited review of the principal areas in which the political question doctrine seemed most established, it is possible to extract some factors that seemingly convinced the courts that the issues presented went beyond the judicial responsibility. These factors, necessarily stated baldly in so summary a fashion, would appear to be the lack of requisite information and the difficulty of obtaining it, 549 the necessity for uniformity of decision and deferrence to the wider responsibilities of the political departments, 550 and the lack of adequate standards to resolve a dispute. 551 But present in all the political cases was (and is) the most important factor, a ''prudential'' attitude about the exercise of judicial review, which emphasizes that courts should be wary of deciding on the merits any issue in which claims of principle as to the issue and of expediency as to the power and prestige of courts are in sharp conflict. The political question doctrine was (and is) thus a way of avoiding a principled decision damaging to the Court or an expedient decision damaging to the principle. 552  

Baker v. Carr .--In Baker v. Carr, 553 the Court undertook a major rationalization and formulation of the political question doctrine, which has considerably narrowed its application. Following Baker, the whole of the apportionment-districting-election restriction controversy previously immune to federal-court adjudication was considered and decided on the merits, 554 and the Court's more recent rejection of the doctrine discloses the narrowing in other areas as well. 555  

According to Justice Brennan, who delivered the opinion of the Court, ''it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the 'political question.''' 556 Thus, the ''nonjusticiability of a political question is primarily a function of the separation of powers.'' 557 ''Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.'' 558 Following a discussion of several areas in which the doctrine had been used, Justice Brennan continued: ''It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers.

''Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.'' 559  

Powell v. McCormack .--Because Baker had apparently restricted the political question doctrine to intrafederal issues, there was no discussion of the doctrine when the Court held that it had power to review and overturn a state legislature's refusal to seat a member-elect because of his expressed views. 560 But in Powell v. McCormack, 561 the Court was confronted with a challenge to the exclusion of a member- elect by the United States House of Representatives. Its determination that the political question doctrine did not bar its review of the challenge indicates the narrowness of application of the doctrine in its present state. Taking Justice Brennan's formulation in Baker of the factors that go to make up a political question, 562 Chief Justice Warren determined that the only critical one in this case was whether there was a ''textually demonstrable constitutional commitment'' to the House to determine in its sole discretion the qualifications of members. 563 In order to determine whether there was a textual commitment, the Court reviewed the Constitution, the Convention proceedings, and English and United States legislative practice to ascertain what power had been conferred on the House to judge the qualifications of its members; finding that the Constitution vested the House with power only to look at the qualifications of age, residency, and citizenship, the Court thus decided that in passing on Powell's conduct and character the House had exceeded the powers committed to it and thus judicial review was not barred by this factor of the political question doctrine. 564 Although this approach accords with the ''classicist'' theory of judicial review, 565 it circumscribes the political question doctrine severely, inasmuch as all constitutional questions turn on whether a governmental body has exceeded its specified powers, a determination the Court traditionally makes, whereas traditionally the doctrine precluded the Court from inquiring whether the governmental body had exceeded its powers. In short, the political question consideration may now be one on the merits rather than a decision not to decide.

Chief Justice Warren disposed of the other factors present in political question cases in slightly more than a page. Since resolution of the question turned on an interpretation of the Constitution, a judicial function which must sometimes be exercised ''at variance with the construction given the document by another branch,'' there was no lack of respect shown another branch, nor, because the Court is the ''ultimate interpreter of the Constitution,'' will there be ''multifarious pronouncements by various departments on one question,'' nor, since the Court is merely interpreting the Constitution, is there an ''initial policy determination'' not suitable for courts. Finally, ''judicially . . . manageable standards'' are present in the text of the Constitution. 566 The effect of Powell is to discard all the Baker factors inhering in a political question, with the exception of the textual commitment factor, and that was interpreted in such a manner as seldom if ever to preclude a judicial decision on the merits.

The Doctrine Reappears .--Reversing a lower federal court ruling subjecting the training and discipline of National Guard troops to court review and supervision, the Court held that under Article I, Sec. 8, cl. 16, the organizing, arming, and disciplining of such troops are committed to Congress and by congressional enactment to the Executive Branch. ''It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches, directly responsible--as the Judicial Branch is not--to the elective process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.'' 567 The suggestion of the infirmity of the political question doctrine was rejected, since ''because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise.'' 568 In staying a grant of remedial relief in another case, the Court strongly suggested that the actions of political parties in national nominating conventions may also present issues not meet for judicial resolution. 569 A challenge to the Senate's interpretation of and exercise of its impeachment powers was held to be nonjusticiable; there was a textually demonstrable commitment of the issue to the Senate, and there was a lack of judicially discoverable and manageable standards for resolving the issue. Supp.15  

Despite the occasional resort to the doctrine, the Court continues to reject its application in language that confines its scope. Thus, when parties challenged the actions of the Secretary of Commerce in declining to certify, as required by statute, that Japanese whaling practices undermined the effectiveness of international conventions, the Court rejected the Government's argument that the political question doctrine precluded decision on the merits. The Court's prime responsibility, it said, is to interpret statutes, treaties, and executive agreements; the interplay of the statutes and the agreements in this case implicated the foreign relations of the Nation. ''But under the Constitution, one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.'' 570  

After requesting argument on the issue, the Court held that a challenge to a statute on the ground that it did not originate in the House of Representatives as required by the origination clause was justiciable. 571 Turning back reliance on the various factors set out in Baker, in much the same tone as in Powell v. McCCormack, the Court continued to evidence the view that only questions textually committed to another branch are political questions. Invalidation of a statute because it did not originate in the right House would not demonstrate a ''lack of respect'' for the House that passed the bill. ''[D]isrespect,'' in the sense of rejecting Congress' reading of the Constitution, ''cannot be sufficient to create a political question. If it were every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible.'' 572 That the House of Representatives has the power and incentives to protect its prerogatives by not passing a bill violating the origination clause did not make this case nonjusticiable. ''[T]he fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question.'' 573 The Court also rejected the contention that, because the case did not involve a matter of individual rights, it ought not be adjudicated. Political questions are not restricted to one kind of claim, but the Court frequently has decided separation-of-power cases brought by people in their individual capacities, and the allocation of powers within a branch, as is the case in interbranch dispositions, is designed to safeguard liberty. 574 Finally, the Court was sanguine that it could develop ''judicially manageable standards'' for dispos ing of origination clause cases, and, thus, it did not view the issue as political in that context. 575  

In short, the political question doctrine may not be moribund, but it does seem applicable to a very narrow class of cases.


[Footnote 510] Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); cf. Baker v. Carr, 369 U.S. 186, 278 (1962) (Justice Frankfurter dissenting). The most successful effort at conceptualization of the doctrine is Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517 (1966). See Hart & Wechsler, op. cit., n. 250, 270-294.

[Footnote 511] Frank, Political Questions, in E. Cahn (ed.), Supreme Court and Supreme Law (Bloomington: 1954), 36.

[Footnote 512] Ibid.

[Footnote 513] Baker v. Carr, 369 U.S. 186, 208 -232 (1962).

[Footnote 514]   5 U.S. (1 Cr.) 137, 170 (1803).

[Footnote 515] In Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 516 (1840), the Court, refusing an effort by mandamus to compel the Secretary of the Navy to pay a pension, said: ''The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them.'' It therefore follows that mandamus will lie against an executive official only to compel the performance of a ministerial duty, which admits of no discretion, and may not be invoked to control executive or political duties which admit of discretion. See Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838).

[Footnote 516]   3 U.S. (3 Dall.) 199 (1796).

[Footnote 517]   25 U.S. (12 Wheat.) 19 (1827).

[Footnote 518]   48 U.S. (7 How.) 1 (1849).

[Footnote 519] Cf. Baker v. Carr, 369 U.S. 186, 218 -222 (1962); id., 292- 297 (Justice Frankfurter dissenting).

[Footnote 520] Luther v. Borden, 48 U.S. (7 How.) 1, 40 (1849).

[Footnote 521] Id., 42 (citing Article IV, Sec. 4).

[Footnote 522] Ibid.

[Footnote 523] Ibid.

[Footnote 524] Id., 43.

[Footnote 525] Id., 44.

[Footnote 526] Article IV, Sec. 4.

[Footnote 527] As it was on the established government of Rhode Island in Luther v. Borden, 48 U.S. (7 How.) 1 (1849). See also Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Taylor v. Beckham, 178 U.S. 548 (1900).

[Footnote 528] Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. City of Portland, 223 U.S. 151 (1912) (attacks on initiative and referendum); Marshall v. Dye, 231 U.S. 250 (1913) (state constitutional amendment procedure); O'Neill v. Leamer, 239 U.S. 244 (1915) (delegation to court to form drainage districts); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (submission of legislation to referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917) (workmen's compensation); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 (1930) (concurrence of all but one justice of state high court required to invalidate statute); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937) (delegation of legislative powers).

[Footnote 529] All the cases, however, predate the application of the doctrine in Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912). See Attorney General of the State of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905) (legislative creation and alteration of school districts ''compatible'' with a republican form of government); Forsyth v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to court to determine municipal boundaries does not infringe republican form of government); Minor v. Happersett, 88 U.S. (21 Wall) 162, 175 -176 (1875) (denial of suffrage to women no violation of republican form of government).

[Footnote 530] Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948).

[Footnote 531] United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852).

[Footnote 532] Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918). See Ex parte Hitz, 111 U.S. 766 (1884).

[Footnote 533] United States v. The Three Friends, 166 U.S. 1 (1897); In re Baiz, 135 U.S. 403 (1890). Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

[Footnote 534] United States v. Reynes, 50 U.S. (9 How.) 127 (1850); Garcia v. Lee, 37 U.S. (12 Pet.) 511 (1838); Keene v. McDonough, 33 U.S. (8 Pet.) 308 (1834). See also Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839); Underhill v. Hernandez, 168 U.S. 250 (1897). But see United States v. Belmont, 301 U.S. 324 (1937). On the ''act of State'' doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), with First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). And see First National City Bank v. Banco Para el Comercio de Cuba, 462 U.S. 611 (1983); W. S. Kirkpatrick Co. v. Environmental Tectronics Corp., 493 U.S. 400 (1990)

[Footnote 535] Doe v. Braden, 57 U.S. (16 How.) 635 (1853).

[Footnote 536] Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 U.S. 503 (1947).

[Footnote 537] Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852). On the effect of a violation by a foreign state on the continuing effectiveness of the treaty, see Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Charlton v. Kelly, 229 U.S. 447 (1913).

[Footnote 538] Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796). Cf. Chinese Exclusion Cases, 130 U.S. 581 (1889) (conflict of treaty with federal law). On the modern formulation, see Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 229 -230 (1986).

[Footnote 539] Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407 (1886).

[Footnote 540] Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. Miller Co., 333 U.S. 138 (1948); Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924); Ludecke v. Watkins, 335 U.S. 160 (1948); Lee v. Madigan, 358 U.S. 228 (1959); The Divina Pastora, 17 U.S. (4 Wheat.) 52 (1819). The cases involving the status of Indian tribes as foreign states usually have presented political questions but not always. The Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Sandoval, 231 U.S. 28 (1913); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

[Footnote 541] Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 162 U.S. 547 (1896); cf. Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868). See, for the modern formulation, United States v. Munoz-Flores, 495 U.S. 385 (1990).

[Footnote 542] Coleman v. Miller, 307 U.S. 433 (1939) (Congress' discretion to determine what passage of time will cause an amendment to lapse and effect of previous rejection by legislature).

[Footnote 543] Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919); Rainey v. United States, 232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220 U.S. 107 (1911); Twin City Bank v. Nebeker, 167 U.S. 196 (1897); Lyons v. Woods, 153 U.S. 649 (1894); United States v. Ballin, 144 U.S. 1 (1892) (statutes); United States v. Sprague, 282 U.S. 716 (1931); Leser v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368 (1921); Hawke v. Smith, 253 U.S. 221 (1920); National Prohibition Cases, 253 U.S. 350 (1920); Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798) (constitutional amendments).

[Footnote 544] Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United States, 302 U.S. 583 (1938).

[Footnote 545]   369 U.S. 186 (1962).

[Footnote 546] Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947).

[Footnote 547] South v. Peters, 339 U.S. 276 (1950) (county unit system for election of statewide officers with vote heavily weighed in favor of rural, lightly-populated counties).

[Footnote 548] MacDougall v. Green, 335 U.S. 281 (1948) (signatures on nominating petitions must be spread among counties of unequal population).

[Footnote 549] Thus, see, e.g., Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948); Coleman v. Miller, 307 U.S. 433, 453 (1939).

[Footnote 550] Thus, see, e.g., Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839). Similar considerations underlay the opinion in Luther v. Borden, 48 U.S. (7 How.) 1 (1849), in which Chief Justice Taney wondered how a court decision in favor of one faction would be received with Congress seating the representatives of the other faction and the President supporting that faction with military force.

[Footnote 551] Baker v. Carr, 369 U.S. 186, 217 , 226 (1962) (opinion of the Court); id., 268, 287, 295, (Justice Frankfurter dissenting.)

[Footnote 552] For a statement of the ''prudential'' view, see generally A. Bickel, The Least Dangerous Branch--The Supreme Court at the Bar of Politics (New York: 1962), but see esp. 23-28, 69-71, 183-198. See also Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frankfurter dissenting.) The opposing view, which has been called the ''classicist'' view, is that courts are duty bound to decide all cases properly before them. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). See also H. Wechsler, Principles, Politics, and Fundamental Law--Selected Essays (Cambridge: 1961), 11-15.

[Footnote 553]   369 U.S. 186 (1962).

[Footnote 554] Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Hadley v. Junior College District, 397 U.S. 50 (1970) (apportionment and districting, congressional, legislative, and local); Gray v. Sanders, 372 U.S. 368 (1963) (county unit system weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969) (geographic dispersion of persons signing nominating petitions).

[Footnote 555] Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the doctrine continues to be sighted.

[Footnote 556] Baker v. Carr, 369 U.S. 186, 210 (1962). This formulation fails to explain cases like Moyer v. Peabody, 212 U.S. 78 (1909), in which the conclusion of the Governor of a State that insurrection existed or was imminent justifying suspension of constitutional rights was deemed binding on the Court. Cf. Sterling v. Constantin, 287 U.S. 378 (1932). The political question doctrine was applied in cases challenging the regularity of enactments of territorial legislatures. Harwood v. Wentworth, 162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649 (1894); Clough v. Curtis, 134 U.S. 361 (1890). See also In re Sawyer, 124 U.S. 200 (1888); Walton v. House of Representatives, 265 U.S. 487 (1924).

[Footnote 557] Id., 369 U.S., 210.

[Footnote 558] Id., 211.

[Footnote 559] Id., 217. It remains unclear after Baker whether the political question doctrine is applicable solely to intrafederal issues or only primarily, so that the existence of one or more of these factors in a case involving, say, a State, might still give rise to nonjusticiability. At one point, id., 210, Justice Brennan says that nonjusticiability of a political question is ''primarily'' a function of separation of powers but in the immediately preceding paragraph he states that ''it is'' the intrafederal aspect ''and not the federal judiciary's relationship to the States'' that raises political questions. But subsequently, id., 226, he balances the present case, which involves a State and not a branch of the Federal Government, against each of the factors listed in the instant quotation and notes that none apply. His discussion of why guarantee clause cases are political presents much the same difficulty, id., 222-226, inasmuch as he joins the conclusion that the clause commits resolution of such issues to Congress with the assertion that the clause contains no ''criteria by which a court could determine which form of government was republican,'' id., 222, a factor not present when the equal protection clause is relied on. Id., 226.

[Footnote 560] Bond v. Floyd, 385 U.S. 116 (1966).

[Footnote 561]   395 U.S. 486 (1969).

[Footnote 562] Baker v. Carr, 369 U.S. 186, 217 (1962).

[Footnote 563] Id., 395 U.S., 519.

[Footnote 564] Id., 519-547. The Court concluded, however, by noting that even if this conclusion had not been reached from unambiguous evidence, the result would have followed from other considerations. Id., 547-548.

[Footnote 565] Supra, n. 552. See H. Wechsler, op. cit., n. 552, 11-12. Professor Wechsler believed that congressional decisions about seating members were immune to review. Ibid. Chief Justice Warren noted that ''federal courts might still be barred by the political question doctrine from reviewing the House's factual determination that a member did not meet one of the standing qualifications. This is an issue not presented in this case and we express no view as to its resolution.'' Powell v. McCormack, 395 U.S. 486, 521 n. 42 (1969). And see id., 507 n. 27 (reservation on limitations that might exist on Congress' power to expel or otherwise punish a sitting member).

[Footnote 566] Id., 395 U.S., 548-549. With the formulation of Chief Justice Warren, compare that of then-Judge Burger in the lower court. 395 F.2d 577, 591-596 (D.C.Cir. 1968).

[Footnote 567] Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar prudential concerns seem to underlay, though they did not provide the formal basis for, decisions in O'Shea v. Littleton, 414 U.S. 488 (1974), and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974).

[Footnote 568] Id., 413 U.S., 11. Other considerations of justiciability, however, id., 10, preclude using the case as square precedent on political questions. Notice that in Scheuer v. Rhodes, 416 U.S. 232, 249 (1974), the Court denied that the Gilligan v. Morgan holding barred adjudication of damage actions brought against state officials by the estates of students killed in the course of the conduct that gave rise to both cases.

[Footnote 569] O'Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The issue was mooted by the passage of time and was not thereafter considered on the merits by the Court. Id., 816 (remanding to dismiss as moot). It was also not before the Court in Cousins v. Wigoda, 419 U.S. 477 (1975), but it was alluded to there. See id., 483 n. 4, and id., 491 (Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief Justice Burger using political question analysis to dismiss a challenge to presidential action). But see id. 997, 998 (Justice Powell rejecting analysis for this type of case).

[Footnote 15 (1996 Supplement)] Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its decision as perfectly consonant with Powell v. McCormack. Id. at 236-38.

[Footnote 570] Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 230 (1986). See also Davis v. Bandemer, 478 U.S. 109 (1986) (challenge to political gerrymandering is justiciable).

[Footnote 571] United States v. Munoz-Flores, 495 U.S. 385 (1990).

[Footnote 572] Id., 390 (emphasis in original).

[Footnote 573] Id., 392-393.

[Footnote 574] Id., 393-395.

[Footnote 575] Id., 395-396.

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