Judicial Limits on Sovereignty & Constitutional Amendments in Politics, Study notes of Law

Download Judicial Limits on Sovereignty & Constitutional Amendments in Politics and more Study notes Law in PDF only on Docsity! 457 THE POLITICAL QUESTION DOCTRINES JOHN HARRISON* Much that is said about the political question doctrine is wrong. The doctrine as the Supreme Court has developed it is not a limit on the subject matter jurisdiction of the federal courts. It is, however, a limit on judicial power in its relations with political power. The doctrine has two branches. In one, courts treat certain legal decisions by political actors as conclusive. 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. 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 on grounds that have no foundation in the Court’s cases or Article III. TABLE OF CONTENTS  Introduction ................................................................................ 458  I. What the Doctrine Is ........................................................ 459  A. The Substance of the Political Question Doctrine .. 460  1. Non-judicial finality .............................................. 460  a. Recognition of sovereignty and sovereign relations .......................................................... 461  b. The process of legal enactment .................... 468  * James Madison Distinguished Professor of Law, and Edward F. Howrey Professor, University of Virginia. 458 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 i. Federal statutes ........................................ 468  ii. Constitutional amendments ................... 469  c. Congressional adjudicative authority ........... 476  2. Remedies that would direct political discretion . 481  B. Jurisdiction, Justiciability, and Decision on the Merits ................................................................... 485  1. The Court’s political question decisions ............. 486  a. Decision on the merits based on a political actor’s legal judgment ................................... 486  b. Political autonomy and unavailability of relief ............................................................... 487  c. Substantial federal questions in the Supreme Court of the United States ............................ 493  d. Justiciability .................................................... 496  2. Baker v. Carr, Jurisdiction, and Finality ............... 497  C. Political Questions, Political Power, and Judicial Power ............................................................ 505  II.  Political Rights, Standing, and What the Political Question Doctrine Once Was .......................................................... 509  III. The Lower Courts’ Jurisdictional Political Question Doctrine ............................................................................ 512  A.  Lower Court Political Question Cases ...................... 514  B. The Lower Court Cases and the Supreme Court’s Doctrine ..................................................................... 517  C. Jurisdictional Limits, Substantive Law, and Article III .................................................................... 520  Conclusion .................................................................................. 528  INTRODUCTION To bring order out of chaos is the work of deity. To bring chaos out of order requires some other hand. The Supreme Court’s cases decided on the basis of the political question doctrine are orderly. They reflect a coherent account of the difference between judicial and political power, and the limits on judicial decision making that result from that difference. Those cases do not treat the doctrine as a limit on the federal courts’ jurisdiction. Commentators, lower federal courts, and the Court itself in its dicta, have often lost sight of that order. As a result, the lower courts, in the name of the political question doctrine, have found limits on their own jurisdiction that are not founded in the Court’s decisions or Article III of the Constitution. 2017] THE POLITICAL QUESTION DOCTRINES 461 a. Recognition of sovereignty and sovereign relations Many of the Court’s political question cases treat a decision made by the political branches concerning sovereignty, sovereign power, and sovereign relations as conclusive. The existence of states, governments, and quasi-sovereigns, such as Indian tribes, and the relations of war and peace among sovereigns, are questions the courts will not decide for themselves when an authoritative political actor has answered the question.6 At the head of this doctrinal line is Luther v. Borden,7 in which the Court said that the judiciary should take as dispositive the political branches’ resolution of a disputed question and decide the merits on the basis of that resolution.8 Luther was a trespass action in the federal diversity jurisdiction in which, as Chief Justice Taney dryly put it, the questions before the Court were “not such as commonly arise in an action of trespass.”9 Those uncommon questions concerned the identity of the lawful government of Rhode Island.10 Luther arose out of the political disturbances in Rhode Island in 1841 and 1842, now known as the Dorr Rebellion.11 Dissatisfied with their state’s constitutional system, which rested on its original colonial Charter, a group of Rhode Islanders, led by Thomas Dorr, sought to change Rhode Island’s Constitution through a direct act of popular sovereignty.12 Without the legislature’s authorization, they convened a constitutional convention, drafted a constitution, and submitted it to a vote that they claimed was a referendum of the people.13 When that 6. Recognition is a sovereign’s official acceptance of a status under international law. A sovereign might recognize a foreign entity as a state, a regime as the other state’s government, a place as part of the other state’s territory, rebel forces in the other state as a belligerent power, and so on. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2118 (2015) (Scalia, J., dissenting) (citing 2 MARJORIE M. WHITEMAN, DIGEST OF INTERNATIONAL LAW § 1 (1963)); see also Baker, 369 U.S. at 215–17; Luther v. Borden, 48 U.S. (7 How.) 1, 35–37 (1849). 7. 48 U.S. (7 How.) 1 (1849). 8. Id. at 47. 9. Id. at 35. 10. Id. at 35, 38–39. 11. Id. at 37. 12. Id. at 35, 37. 13. Id. at 36. 462 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 referendum approved the new constitution, the insurgents formed a government under it, electing Thomas Dorr as Governor.14 As far as the government under the Charter was concerned, these proceedings were illegal and void, and the Dorr government’s organization of a militia was an act of rebellion.15 When Governor King of the Charter government sought aid from the federal government, President Tyler responded that although he did not think that the Dorrites’ conduct to that point had amounted to actual insurrection, should an insurrection commence, he would authorize the use of federal force under the statutes concerning civil disturbances in the states.16 The Charter legislature proclaimed martial law and a militia force, under Luther Borden, broke into the house of Martin Luther, a Dorr supporter.17 Eventually, peace was restored, and a new constitution with a broader franchise was drafted and approved by a referendum arranged by the Charter legislature. That constitution went into effect in 1843.18 Also in 1843, Luther, now a citizen of Massachusetts, sued Borden for trespass in federal diversity jurisdiction.19 At trial, Borden justified breaking into Luther’s house on the grounds that he had acted lawfully as a member of the militia under martial law.20 Luther replied that the Charter government was not lawful, having been replaced by the people with the Dorr government, so it could not authorize Borden’s 14. WILLIAM M. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION 91, 95 (1972); see also Luther, 48 U.S. (7 How.) at 35–37. 15. Luther, 48 U.S. (7 How.) at 36–37. 16. WIECEK, supra note 14, at 104; see also Luther, 48 U.S. (7 How.) at 44. 17. Luther, 48 U.S. (7 How.) at 34. Compare Luther, 48 U.S. (7 How.) at 33–34 (providing that Borden claimed to be looking for Luther himself), with WIECEK, supra note 14, at 113–14 (explaining that Borden and his fellow militia members were looking for incriminating evidence). 18. Luther, 48 U.S. (7 How.) at 37. 19. Id. at 1; WIECEK, supra note 14, at 114. 20. WIECEK, supra note 14, at 114–15. 2017] THE POLITICAL QUESTION DOCTRINES 463 acts.21 The circuit court directed the jury that Borden’s plea of official privilege was good and entered judgment for the defendant.22 The Supreme Court affirmed the circuit court’s disposition on the merits.23 The Court did not, however, decide for itself whether the Charter government had been the lawful government of Rhode Island. Chief Justice Taney, speaking for the Court, concluded that the identity of the lawful government of a state was a political question to be decided by the political branches of the federal government, whose decision would bind the courts.24 He maintained that under the Guarantee Clause of Article IV, “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 necessarily decide what government is established in the State before it can determine whether it is republican or not.”25 From the beginning, Congress had admitted Senators and Representatives elected from Rhode Island under the Charter government. “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.”26 Although “Congress was not called upon to decide the controversy” because the Dorr government 21. The plaintiff contends that the charter government was displaced, and ceased to have any lawful power, after the organization, in May, 1842, of the government which he supported, and although that government never was able to exercise any authority in the State, nor to command obedience to its laws or to its officers, yet he insists that it was the lawful and established government, upon the ground that it was ratified by a large majority of the male people of the State of the age of twenty-one and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the State. Luther, 48 U.S. (7 How.) at 38; see also WIECEK, supra note 14, at 115. 22. Luther, 48 U.S. (7 How.) at 38. 23. Id. at 38, 47 (upholding the defendant’s plea of justification and affirming the decision of the Circuit Court on the merits of the case). 24. Id. at 47 (“[W]hether they have changed [the form of government] or not by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it.”). 25. Id. at 42. 26. Id. 466 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 Company, via the initiative process.39 In a collection action brought by the state, the company argued that the tax was invalid because direct democracy is unrepublican.40 Chief Justice White, speaking for the Court, regarded the company’s argument as based upon the single contention that the creation by a State of the power to legislate by the initiative and referendum [process] causes the prior lawful state government to be bereft of its lawful character as the result of the provisions of § 4 of Art. IV of the Constitution.41 The Chief Justice concluded, however, that only the political branches could determine that a state’s government had become unrepublican, and that, until they did so, the courts could not “disregard the existence in fact of the State [and] of its recognition by all of the departments of the Federal Government.”42 He relied for that proposition on “the leading and absolutely controlling case,” Luther.43 That case, he said, recognized the necessity for the existence somewhere in the Constitution of a tribunal, upon which the people of a State could rely, to protect them from the wrongful continuance against their will of a government not republican in form, proceeded to inquire whether a tribunal existed and its character. In doing this it pointed out that owing to the inherent political character of such a question its decision was not by the Constitution vested in the judicial department of the Government, but was on the contrary exclusively committed to the legislative department by whose action on such subject the judiciary were absolutely controlled.44 39. Id. at 134. Under the initiative process, “a stated number of voters were given the right at any time to secure a submission to popular vote for approval of any matter which it was desired to have enacted into law.” Id. 40. See Transcript of Record at 8, Pac. States Tel., 223 U.S. 118 (No. 36) (relying on Article IV and several other provisions to maintain that the U.S. Constitution requires that “the government of the several states shall be representative in form and that the several states shall create and maintain representative legislative assemblies”). The initiative process was a form of direct democracy because it empowered voters to create legislation by allowing them to submit laws to a popular vote rather than wait for their elected representatives to pass the desired law. Id. at 137–41. The Supreme Court of Oregon rejected the constitutional defense, and the company appealed to the Supreme Court of the United States on writ of error. Pac. States Tel., 223 U.S. at 136. 41. Pac. States Tel., 223 U.S. at 137. 42. Id. at 142. 43. Id. at 143. 44. Id. at 146. 2017] THE POLITICAL QUESTION DOCTRINES 467 Having found that only Congress could determine that a state government is unrepublican, and that Congress had not done so, the Court dismissed the writ of error for want of jurisdiction.45 Chief Justice White’s choice of words shows that he regarded the courts as conclusively bound by Congress’s decision to recognize the existing government of Oregon, with that decision’s implication that that government was republican. He said that the judiciary was “absolutely controlled” by the legislative department, which he described as a “tribunal.”46 Three times in one paragraph the Chief Justice referred to recognition of a state by Congress.47 His Court had recently reaffirmed, and soon would reiterate, the principle that recognition of a government is a political decision that is binding on the courts.48 In the next paragraph, Chief Justice White asked whether the provisions of Article IV “authorize[d] the judiciary to substitute its judgment as to a matter purely political for the judgment of Congress on a subject committed to it.”49 Describing Congress’s action as a “judgment” indicated that it had acted like a court, applying legal principles to specific facts. 45. Id. at 151; see infra notes 190–94 and accompanying text (explaining the lack of jurisdiction was statutory, not constitutional). 46. Pac. States Tel., 223 U.S. at 146. 47. Id. at 141–42. 48. In Underhill v. Hernandez, 168 U.S. 250 (1897), the Court was called on to decide whether the acts of General Hernandez, a military commander during a civil war in Venezuela, were those of the government of Venezuela or those of “banditti or mere mobs.” Id. at 253. The Court found: The acts complained of were the acts of a military commander representing the authority of the revolutionary party as a government, which afterwards succeeded and was recognized by the United States. We think the Circuit Court of Appeals was justified in concluding “that the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government.” Id. at 254. A few years after Pacific States Telephone, in Oetjen v. Central Leather Co., 246 U.S. 297 (1918), the Court had before it a purported expropriation by a rebel government of Mexico, a government that was later recognized by the United States. Id. at 299–301. The Court treated the expropriation as a sovereign act of Mexico. It has been specifically decided that “Who is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances.” Id. at 302 (quoting Jones v. United States, 137 U.S. 202, 212 (1890)). 49. Pac. States Tel., 223 U.S. at 142. 468 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 Pacific States Telephone was decided on grounds of non-judicial finality: Congress’s recognition of a state government conclusively determines that the state’s government is republican in form. The Court had said that in Luther. Whether that statement was a holding is not clear, but if it was a dictum in the nineteenth century, the statement became a holding in the twentieth.50 A binding determination by a political actor may resolve a case only in part. Luther, for example, turned not only on the lawfulness of the Charter government, but also on its imposition of martial law. Only once the Court had concluded that a lawful government had lawfully imposed martial law was it able to conclude that the defense of official privilege was available and give judgment for the defendant.51 When a court attributes finality to the legal judgment of a non-judicial actor, the court often goes on to decide the case on the merits, assuming that the non- judicial decision was correct. Luther rested on political branch finality concerning questions of sovereignty and relations among sovereigns. Recognition of foreign governments is one example of that category. As Justice Brennan pointed out in Baker, the courts often give final authority to political branch conclusions regarding another fundamental question of relations among sovereigns: war and peace.52 The courts regularly regard themselves as bound by political decisions concerning the existence and duration of hostilities and resolve the cases before them on the basis of those decisions. b. The process of legal enactment Congress may pass statutes only through the process set out in Article I, Section 7. The Constitution may be amended only through the process set out in Article V. The Court has found non-judicial finality with respect to aspects of those enactment processes. i. Federal statutes When bills are submitted to the President for signature or veto, they bear the statement of the Speaker of the House and President (or President Pro Tempore) of the Senate that the House and Senate 50. Baker v. Carr, 369 U.S. 186, 224–25 (1962). Whether the courts are absolutely bound by a political determination that an existing state government is unrepublican is not clear. Baker says that Congress’s determination that a government is unrepublican is binding, id., but no such determination was before the Court in that case. 51. Luther v. Borden, 48 U.S. (7 How.) 1, 47–48 (1849). 52. Baker, 369 U.S. at 213–14. 2017] THE POLITICAL QUESTION DOCTRINES 471 ratification brought an action against Miller, the Secretary of the Kansas Senate, and other Kansas officials, in the Supreme Court of Kansas.69 The plaintiffs sought a writ of mandamus directing Secretary Miller to erase the endorsement he had put on the resolution declaring it to have passed the Kansas Senate, and replace it with an endorsement reading, “was not passed.”70 They also sought orders against Miller and the other defendants restraining them from signing the resolution and presenting it to the Governor of Kansas.71 On the merits, the plaintiffs argued that the Lieutenant Governor had no authority to cast a vote on a constitutional amendment, and that as a result the resolution had failed on an equally divided vote in the Kansas Senate.72 They also argued that Kansas’s earlier vote of rejection barred any further action by that state and that the amendment was no longer open to ratification because a reasonable time for ratification had passed.73 On the last point, the plaintiffs relied on statements by the Supreme Court of the United States in a case concerning the Eighteenth Amendment, where the Court held that Article V implicitly limits the amendment process to a reasonable time from proposal.74 The Supreme Court of Kansas denied the requested relief and the Supreme Court of the United States affirmed. The Kansas court considered and rejected the petitioners’ arguments concerning Article V.75 In the Supreme Court of the United States, Chief Justice Hughes 69. Id. 70. Id. 71. Id. 72. Id. 73. Id. 74. Id. at 527 (citing Dillon v. Gloss, 256 U.S. 368, 374, 376 (1921)) (holding that Congress has the power to fix a definite period for the ratification of an amendment to the Constitution). Dillon involved a challenge to the validity of the Eighteenth Amendment, Section 3 of which provided that the Amendment shall be inoperative if it has not been ratified within seven years of proposal. 256 U.S. at 370–71. The opponents of the Amendment argued that Congress did not have the power to impose such a time limit. Id. at 371. The Court rejected that challenge, reasoning that the Constitution itself requires that amendments be ratified within a reasonable time. Id. at 374. Because the Constitution permits ratification only within a reasonable time, Congress could set such a time in the amendment itself. Id. at 376. 75. In response to petitioners’ arguments, the Kansas Supreme Court concluded that the Lieutenant Governor of Kansas could cast a tie-breaking vote on a constitutional amendment, Coleman, 71 P.2d at 524, that a State may reject and then subsequently validly ratify a constitutional amendment, id. at 526, and that ratification of the Child Labor Amendment remained timely, id. at 526–27. 472 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 wrote an opinion styled as that of the Court that did not command a majority of the Justices on all the issues it addressed. The Chief Justice dealt first with “the jurisdiction of this Court,” which had been challenged on the grounds that the Kansas legislators had “no standing to seek to have the judgment of the state court reviewed,” and that the writ of certiorari therefore should be dismissed.76 In a decision that remains important with respect to so-called “legislator standing,” the Court concluded that it had jurisdiction, even though the plaintiffs did not allege private damage.77 On that question the Chief Justice was joined by Justices Stone, Reed, Butler, and McReynolds, and so spoke for a majority of the Court.78 A different majority concluded that the Supreme Court of Kansas was correct in denying relief.79 Seven Justices agreed on that disposition and characterized ratification of constitutional amendments as at least in part a political question for Congress to resolve.80 Those seven divided into blocs of three and four that differed in their reasoning, so there was no opinion for a majority on that issue.81 All seven understood the political question doctrine as producing a form of non-judicial finality. Chief Justice Hughes, speaking for himself and Justices Stone and Reed, found that Congress had the final authority to decide whether a constitutional amendment had been ratified in a timely fashion, and that the congressional decision would be conclusive for the courts. He asserted that “[t]he decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be 76. Coleman v. Miller, 307 U.S. 433, 437 (1939). 77. Id. at 445 (discussing the argument that the plaintiffs lacked standing, as the legislators bringing suit could not show an individual and particularized injury). 78. Justice Frankfurter, in an opinion joined by Justices Roberts, Black, and Douglas, maintained that the petitioners lacked standing. Id. at 460. 79. The Court did not address the objection to the Lieutenant Governor’s tie- breaking vote, being evenly divided as to whether that was a nonjusticiable political question. Id. at 446–47. 80. Id. at 435, 456–57. Justices Hughes, Stone, and Reed for the Court and Justices Black, Roberts, Frankfurter, and Douglas in concurrence. Id. at 435, 456. 81. Id. at 451–52, 459–60. Justices Hughes, Stone, and Reed addressed the question regarding limits of Congress’s power to determine what constitutes a reasonable timeframe for ratification, ultimately finding that the proper frame was for Congress alone to determine; Justices Black, Roberts, Frankfurter, and Douglas found it improper for the Court to even address the question of reasonableness as the rules of ratification are the exclusive domain of Congress and require no pronouncements of validity by the court. Id. 2017] THE POLITICAL QUESTION DOCTRINES 473 subject to review by the courts.”82 Describing his Court’s prior decisions “as to the class of questions deemed to be political and not justiciable,” he then explained that “[i]n determining whether a question falls within that category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.”83 The Chief Justice was quite explicit in saying that political actors’ resolution of political questions can provide the courts with rules of decision that they then can apply. Less explicit was his derivation of the result in Coleman from that principle. He rejected a challenge to his Court’s jurisdiction and affirmed the Supreme Court of Kansas’s decision to deny relief, but he did not address the substance of petitioners’ arguments under Article V. How could Chief Justice Hughes have thought it proper to exercise jurisdiction and affirm without fully resolving the merits? Although the Chief Justice did not explain that point in depth, his opinion indicates that affirmance was appropriate because judgment for the plaintiffs would have interfered with Congress’s decisional process. In the Kansas court, the plaintiffs had sought orders that would prevent the transmission to the national government of a certification that Kansas had ratified. Judicial relief of that kind would have intercepted Kansas’s certification, and kept Congress from passing on its validity. Chief Justice Hughes believed that Congress was to decide on the validity of that purported act. After explaining that the reasonableness of time for ratification presents political and not judicial questions, he said that “[t]hey can be decided by the Congress with the full knowledge and appreciation . . . of the political, social[,] and economic conditions which have prevailed during the period 82. Id. at 454. In referring to Congress’s control of the action of the Secretary of State, the Chief Justice apparently had the circumstances surrounding the promulgation of the Fourteenth Amendment in mind. In response to the Secretary of State’s doubts as to whether the Amendment had been ratified, Congress in 1868 declared that it had been ratified and directed the Secretary to promulgate it. Id. at 448–49. According to Chief Justice Hughes, “This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted.” Id. at 449–50. Of all the amendments to the Constitution, only the Fourteenth was promulgated in response to specific congressional direction. Chief Justice Hughes did not base his argument about congressional power on the text of Article V, which makes no reference to any congressional role in promulgation. 83. Id. at 454–55. 476 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control[,] or interference at any point.”94 In his view, that was why the Supreme Court of Kansas was right to deny mandamus, though he believed it was wrong to have discussed the substance of Article V in its reasoning. Coleman thus turned on non-judicial finality. It differed from Luther and Field v. Clark because the relevant political actor had not yet supplied the courts with a decision that they could treat as conclusive. The Court was not being asked to respect a congressional action promulgating the Child Labor Amendment. Nor was Coleman a case in which a court could make a provisional decision subject to later correction by a conclusive political act. Had the courts granted the relief requested, the federal government would not have received notification from Kansas that the state had ratified. If thirty-five other states had notified the Secretary of State of their ratification, but Kansas had not done so, Congress would not have been in a position to decide if Kansas had validly ratified and if the amendment had therefore become part of the Constitution.95 That feature of the case, combined with all seven Justices’ concern that the courts not interfere with congressional resolution of the timeliness issue, suggest that seven Justices concluded that the courts may not prejudice political resolution of a political question by issuing an order that affects the process through which that resolution takes place. This aspect of the political question doctrine, like the aspect concerning recognition of sovereign relations, accords conclusive force to non-judicial decisions that apply legal rules to specific facts. b. Congressional adjudicative authority Some provisions of the Constitution assign adjudicative authority to a house of Congress. Article II, Section 4 provides that “[t]he President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”96 Article I, Section 2 gives “the sole Power of Impeachment” to the House,97 and Section 3 provides that “the Senate shall have the sole Power to try all 94. Id. at 459. 95. At the time of Coleman, ratification required thirty-six of the forty-eight States then in the Union. 96. U.S. CONST. art. II, § 4. 97. Id. art. I, § 2, cl. 5. 2017] THE POLITICAL QUESTION DOCTRINES 477 Impeachments.”98 Section 5 of Article I states that each house of Congress “shall be the Judge of the Elections, Returns and Qualifications of its own Members.”99 In the exercise of those functions, the House and Senate apply law to fact to resolve legal disputes. They perform functions more usually performed by courts, and the Constitution uses “judge” and “try” to describe those functions. Under the rubric of the political question doctrine, the Supreme Court gives substantial finality to congressional decisions pursuant to these powers. With respect to contested elections for the House and Senate, the Court’s position is that the relevant political decision maker’s judgment is absolutely final. Roudebush v. Hartke100 involved the extremely close 1970 election for Senate in Indiana. Incumbent Senator Vance Hartke was certified the winner by a narrow margin, and his opponent, Richard Roudebush, sought a recount under Indiana law.101 Hartke then sought an injunction against the recount in federal district court, arguing that it was unlawful because of the Senate’s power to judge elections, returns, and qualifications of its members.102 While that litigation was in progress, the Senate seated Hartke, doing so explicitly without prejudice to the recount and the related litigation.103 The Supreme Court concluded that Indiana’s recount procedure was lawful, as it was part of the state election process that would ultimately be reviewed by the Senate.104 The result of that review would be conclusive. “Which candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question.”105 The Indiana recount process, including its judicial component, could go forward because it was in service of, and not prejudicial to, the Senate’s action as judge of the election. “Once this case is resolved and the Senate is assured that it has received the final Indiana tally, the Senate will be 98. Id. art. I, § 3, cl. 6. 99. Id. art. I, § 5, cl. 1. 100. 405 U.S. 15 (1972). 101. Id. at 16–17. 102. Id. at 17 (claiming that the recount was prohibited under Article 1, Section 5 of the U.S. Constitution); see also U.S. CONST. art. I, § 5. 103. Id. at 18. 104. “A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.” Id. at 25–26 (footnotes omitted). 105. Id. at 19. 478 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 free to make an unconditional and final judgment under Art. I, § 5.”106 Final judgments are made by institutions that conclusively apply law to fact. In Roudebush, that institution was the Senate. The question of congressional finality arose a few years earlier in Powell v. McCormack,107 which involved the qualifications of U.S. Representatives. Adam Clayton Powell, elected to the House from New York, sought a declaration that his exclusion from the 90th Congress had been unlawful.108 The Court concluded that the district court had subject matter jurisdiction under Article III and the statutes.109 It then turned to justiciability, which it explicitly distinguished from subject matter jurisdiction, and to the political question doctrine as an aspect of justiciability.110 The Court addressed the Respondents’ argument that “this case presents a political question because, under Art. I, § 5, there has been a ‘textually demonstrable constitutional commitment’ to the House of the ‘adjudicatory power’ to determine Powell’s qualifications.”111 The Court understood that question as turning on the House’s final decisional authority. If Article I, Section 5 “gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine.”112 But “if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, further consideration would be necessary to determine whether any of the other formulations of the political question doctrine” the Court had 106. Id. 107. 395 U.S. 486 (1969). 108. Powell was excluded as a result of an investigation into alleged irregularities in his official expenses. Id. at 489–93. By the time the Court decided Powell v. McCormack, he had already been seated for the 91st Congress and had been fined for financial misconduct. Id. at 494–95. The Court concluded that the case was not moot, because a declaration could still bear on his claim for pay from the 90th Congress, id. at 495– 500, and that it was not barred by the Speech or Debate Clause because Powell properly sought relief from officers of the House who were not Representatives themselves. Id. at 505–06. 109. Id. at 512. 110. Id. (“As we pointed out in Baker v. Carr, 369 U.S. 186, 198 (1962), there is a significant difference between determining whether a federal court has ‘jurisdiction of the subject matter’ and determining whether a cause over which a court has subject matter jurisdiction is ‘justiciable.’”). 111. Id. at 519. 112. Id. at 520. 2017] THE POLITICAL QUESTION DOCTRINES 481 understanding that a commitment of only one issue—what constitutes an impeachment—was at stake. Nixon v. United States found substantial non-judicial finality under the political question rubric. Most likely the case means that Senate impeachments are absolutely conclusive as far as the courts are concerned, but the opinion can be read more narrowly. Each of the three leading cases in which the Court has relied on the political question doctrine—Luther, Coleman, and Nixon v. United States—rests on non-judicial finality. In all three, the Court found that the judiciary was absolutely bound by a political actor’s decision that applied legal rules to specific facts. 2. Remedies that would direct political discretion John Marshall said that “[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this [C]ourt.”129 That conclusion followed from the principle that “[t]he province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.”130 That principle would not keep the court from issuing a writ of mandamus ordering that Madison deliver Marbury’s commission, Marshall explained, because while mandamus is confined to requiring the performance of non-discretionary, ministerial duties, delivering the commission would involve no exercise of discretion by an executive officer.131 Contemporary political question doctrine incorporates the principle that courts may not grant remedies that would control non-judicial decisions to an impermissible extent. The Supreme Court applied that principle in Gilligan v. Morgan,132 an injunctive proceeding against the Governor of Ohio that grew out of the deaths at Kent State University. According to the plaintiffs, the confrontation between demonstrators and the Ohio National Guard had led to fatalities because the Guard was ill-trained and improperly equipped to deal with civil disturbances.133 The district court dismissed for failure to state a claim upon which relief could be granted.134 The court of appeals reversed in part and 129. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). 130. Id. 131. Id. at 171–73. 132. 413 U.S. 1 (1973). 133. Morgan v. Rhodes, 456 F.2d 608, 611 (6th Cir. 1972), rev’d sub nom. Gilligan v. Morgan, 413 U.S. 1 (1973) (quoting the facts of the case as they appear in the complaint). 134. Gilligan, 413 U.S. at 3. 482 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 remanded, instructing the district court to determine whether the Ohio National Guard’s “pattern of training, weaponry and orders” made the use of lethal force inevitable in circumstances in which that level of force was not reasonably necessary.135 In dissent, Judge Celebrezze argued that there was “no conceivable relief” the district court could grant because “any such relief would present a nonjusticiable political question.”136 The court of appeals majority responded that if called on to award injunctive relief, the district court “will find much material available for devising a suitable remedy”; for example, as in the report of the National Advisory Commission on Civil Disorders.137 The Supreme Court reversed.138 Chief Justice Burger, writing for the Court, began by stressing that military decisions are not per se exempt from judicial examination.139 Gilligan was not a damages action growing out of the Kent State tragedy, nor one “seeking a restraining order against some specified and imminently threatened unlawful action.”140 It was “a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard.”141 The plaintiffs wanted the district court to “establish standards for the training, kind of weapons and scope and kind of orders to control the actions of the National Guard,” and then to “exercise a continuing judicial surveillance over the Guard to assure compliance” with its order.142 In the Supreme Court’s view, such an order would exert too much judicial control over government actions that the Constitution leaves to the electorally accountable branches.143 Courts are not suited either to make military decisions or to supervise them. “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.”144 Having found that formulating riot-control policy would require judicial resolution of nonjusticiable political questions, the Court 135. Morgan, 456 F.2d at 612. 136. Id. at 618 (Celebrezze, J., dissenting). 137. Id. at 614. 138. Gilligan, 413 U.S. at 12. 139. Id. at 11–12. 140. Id. at 5. 141. Id. 142. Id. at 6. 143. Id. at 10. 144. Id. 2017] THE POLITICAL QUESTION DOCTRINES 483 reiterated that military decisions could under other circumstances be tested by courts for their legality. “[W]e neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel, whether by way of damages or injunctive relief.”145 Extensive judicial control of military policy was not permissible, but military decisions were still subject to the law. The Court promptly kept its implicit promise in Scheuer v. Rhodes,146 a damages action for wrongful death arising from the events at Kent State. The plaintiffs sought recovery from the personal funds of Governor Rhodes and other Ohio civilian and military officials.147 The Supreme Court concluded that the defendants did not enjoy sovereign immunity.148 They had only the qualified immunity that protects officials when their acts are not clearly unlawful.149 Qualified immunity would enable decision makers to “act swiftly and firmly”150 while preserving the possibility of “accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel, whether by way of damages or injunctive relief.”151 Taken together, Gilligan and Scheuer show that the branch of the political question doctrine at work in the former case forbids judicial displacement of discretion, not the application of legal standards to military decisions. The remedy at issue in Gilligan was a classic prophylactic injunction.152 Plaintiffs asked the district court to impose on the Ohio National Guard detailed rules that were not legally required, but that were designed to reduce the likelihood of events like those at Kent State. Such an order would constrain the policy discretion of another government actor to take otherwise-lawful measures. Gilligan stands for the proposition that when the decisions 145. Id. at 11–12 (footnote omitted). 146. 416 U.S. 232 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814–15 (1982). 147. Id. at 234. 148. Id. at 237–39 (noting that sovereign immunity protects the government itself, not government officials against whom recovery is sought from their personal funds). 149. Id. at 247–48. 150. Id. at 246. 151. Id. at 249 (quoting Gilligan v. Morgan, 413 U.S. 1, 11–12 (1973)). 152. See generally ELAINE W. SHOBEN ET AL., REMEDIES: CASES AND PROBLEMS 293 (4th ed. 2007) (defining a prophylactic injunction as a method “to safeguard the plaintiff’s rights by directing the defendant’s behavior so as to minimize the chance that wrongs might recur in the future”). 486 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 The Court has never held that there is such a limitation, however. This Section shows that the Supreme Court’s cases that apply the political question doctrine do not regard it as a limit on the jurisdiction of Article III courts. It discusses the cases in which the Court has relied on the doctrine, and then turns to Baker v. Carr, which, like earlier decisions, treated the doctrine as a source of non-judicial finality, not lack of jurisdiction. 1. The Court’s political question decisions Despite the political question doctrine’s close relation to the limits on federal judicial power, it is not a limit on subject matter jurisdiction as the Court uses that concept. The political question doctrine has figured in the decision of cases in three ways, none of which involves a lack of jurisdiction under Article III. First, the political question doctrine may require that a court decide on the merits, accepting an earlier political decision. Second, it may bar a court from granting relief that would improperly interfere with a political decision. Third, in applying it, a state court may be so clearly correct that its decision presents no substantial federal question in the statutory appellate jurisdiction of the Supreme Court of the United States. After describing the three contexts, this Section will undertake to better understand the concept of justiciability, which the Court has not fully elaborated. a. Decision on the merits based on a political actor’s legal judgment Perhaps the most straightforward application of the political question doctrine appeared in Luther.163 The Supreme Court accepted the political branches’ judgment that the established government was legitimate, and used it to assess Luther’s claim for damages, which was rejected on the merits. The Court affirmed the circuit court’s judgment, and did not reverse with instructions to dismiss for want of jurisdiction. Field v. Clark worked the same way. Having concluded that the text of an Act certified by Congress was authoritative, the Court decided the case before it on that basis.164 Field no more involved a lack of jurisdiction than does a case that turns in part on the standing and then affirmed the Supreme Court of Kansas, which had decided the case on the merits. Coleman v. Miller, 307 U.S. 433, 437–38 (1939). 163. See supra notes 8–37 and accompanying text. 164. See supra notes 55–58 and accompanying text. 2017] THE POLITICAL QUESTION DOCTRINES 487 preclusive effect of a prior judgment. Non-judicial finality often operates in the same fashion as judicial finality. Because of the political question doctrine, the decision of a non- judicial actor can provide a premise that the court uses in a decision on the merits. As a result, the doctrine can support a decision in favor of the plaintiff, which a limit on jurisdiction cannot do. In the nineteenth century recognition case Williams v. Suffolk Insurance Co.,165 the defendant insurance company refused to pay when the insured’s vessel was seized by the government of Buenos Ayres (as Argentina was then known).166 That seizure followed a warning by Argentine officials that the Falkland Islands were Argentine territory, not open to American fishing vessels.167 The insurance company argued that the policy did not cover seizure under those circumstances. The insured responded that the master of its vessel had acted reasonably in response to the Argentine threat by asserting the right of American citizens to operate in the Falklands, which the U.S. Executive did not recognize as part of Argentina.168 The Court found that the Executive’s conclusion regarding sovereignty over the Falklands was conclusive, and that in light of that conclusion the master had acted reasonably.169 The plaintiff prevailed, relying in part on the Executive’s conclusive determination of sovereign rights. As that case shows, deference to the legal decision of a political actor does not deprive a court of jurisdiction. b. Political autonomy and unavailability of relief In other situations, the political question doctrine prevents the court from granting relief. In those cases, the doctrine bars relief whether or not the defendant’s conduct is lawful and so limits the issues the court addresses. The doctrine does not, however, operate as a limitation on subject matter jurisdiction under Article III. When it produces that result, the political question doctrine functions much like a limit on 165. 38 U.S. (13 Pet.) 415 (1839). 166. Id. 167. Id. at 417. 168. Id. at 420. 169. And we think in the present case, as the executive, in his message, and in his correspondence with the government of Buenos Ayres, has denied the jurisdiction which it has assumed to exercise over the Falkland [I]slands; the fact must be taken and acted on by this Court as thus asserted and maintained. Id. at 420. With that premise in place, the Court concluded that the master of the vessel took no risk that would relieve the insurers of liability on the policy. Id. at 421. 488 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 equitable relief, such as the requirement that the remedy at law be inadequate. If a court applying traditional rules about equitable relief concludes that the plaintiff has an adequate remedy at law, it will deny equitable relief without deciding whether the defendant is a wrongdoer and will be exercising its jurisdiction in doing so.170 Either branch of the doctrine can require a court to deny a remedy without an inquiry into the lawfulness of the defendant’s conduct. Coleman shows how non-judicial finality can require that a court withhold relief. The seven Justices who decided the case on political question grounds did so because judicial relief that prevented Kansas from reporting its purported ratification would interfere with a congressional decision that, if made, would be conclusive on the courts. The other branch of the doctrine, found in Gilligan, readily falls into this category because it is formulated as a limit on relief. As Scheuer demonstrated, the Court in Gilligan was concerned with decrees that would intrude into military discretion, not damages judgments based only on whether a use of force was lawful. In Gilligan, the Court was able to decide that the plaintiffs were not entitled to the relief they requested without deciding all of the issues they raised. Because the injunction that the plaintiffs asked for could not be granted, the courts did not have to assess the Ohio National Guard’s propensity to use force unlawfully. In both Coleman and Gilligan, the Court exercised jurisdiction, and denied relief without resolving all the questions the plaintiffs raised.171 When the political question doctrine makes relief unavailable on the facts as pled by the plaintiff, the complaint will be subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure.172 When applicable legal principles require that the plaintiff be denied a favorable decree, the plaintiff has not stated a claim on which relief can be granted. That conclusion can follow from principles governing remedies, just as it can follow from principles governing other 170. See infra note 184 and accompanying text. 171. In Coleman the Supreme Court of Kansas had resolved the issues the plaintiffs raised under Article V, but the Supreme Court of the United States affirmed that judgment on a different ground, relying on the political question doctrine to do so. Coleman v. Miller, 307 U.S. 433, 437–38 (1939). 172. Fed. R. Civ. P. 12(b)(6) (allowing dismissal for “failure to state a claim upon which relief can be granted”). 2017] THE POLITICAL QUESTION DOCTRINES 491 courts say they lack jurisdiction in equity they do not mean that they lack the authority to decide the case on the grounds that the parties or the subject matter are outside their jurisdiction. They mean that no relief will be granted, often because of principles that govern equitable remedies and do not require that the court resolve all the issues disputed between the parties. When the plaintiff is subject to laches, for example, the court can decide that equitable relief is unavailable the subject. The court below found that the plaintiffs had not made the requisite showing for a preliminary injunction: that the case was “reasonably free from doubt” and that they faced “great and irreparable injury.” Mass. State Grange v. Benton, 10 F.2d 515, 515–16 (D. Mass. 1925) (per curiam) (three-judge district court). The district court then went on to address the substance of plaintiffs’ challenge, and found that the state and federal laws were consistent. Having reached that conclusion, the court found it unnecessary to “discuss the serious jurisdictional questions raised, either as to the rights of the plaintiffs or as to any power vested in the defendants by the Massachusetts act to enforce that act.” Id. at 517 (citing Massachusetts v. Mellon, 262 U.S. 447 (1923)). The Supreme Court affirmed in an opinion by Justice Holmes. Benton, 272 U.S. at 529. He endorsed the district court’s finding that state and federal law did not conflict in a single sentence, and then went on to emphasize “the important rule . . . that no injunction ought to issue against officers of a State clothed with authority to enforce the law in question, unless in a case reasonably free from doubt and when necessary to prevent great and irreparable injury.” Id. at 527 (citation omitted). Having found that the case before him was not an exception to that general principle of equity, Justice Holmes then made the point that courts sometimes say they have no jurisdiction when they mean that no relief is available under equitable principles. Id. at 528. Perhaps to emphasize the distinction, he concluded that “upon the merits we think it too plain to need argument that to grant an injunction upon the allegations of this bill would be to fly in the face of the rule which, as we have said, we think should be very strictly observed.” Id. at 528–29. The point that the case was decided on the merits and not on a jurisdictional ground was not lost on Justice McReynolds, who in a separate opinion said that the suit was actually against the State of Massachusetts, not its officers, and so was excluded from federal jurisdiction by the Eleventh Amendment. Id. at 529. 492 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 without having to decide whether the plaintiff’s claims are otherwise meritorious.185 Political question cases often have that feature.186 When the political question doctrine bars the relief the plaintiff seeks, the case is properly dismissed under rule 12(b)(6) for failure to state a claim upon which relief may be granted, but not for want of jurisdiction. 185. A plaintiff in equity who has delayed unreasonably may be denied relief, or granted only limited relief, under the equitable doctrine of laches. DAN B. DOBBS, LAW OF REMEDIES 75 (2d ed. 1993). The independence of laches and the merits is demonstrated by another principle Dobbs discusses, according to which the defense of laches may be limited to delay that prejudiced the defendant. As a result, a plaintiff complaining of trademark infringement may be barred from retrospective relief by laches but entitled to a prospective injunction. Id. at 76. In such situations, the defendant’s conduct is by hypothesis infringing, but retrospective relief is denied despite that feature of the merits. In discussing another traditional equitable principle, the requirement that the remedy at law be inadequate, Dobbs makes the point about misleading references to lack of “jurisdiction.” A traditional locution of equity courts referred to the body of equity precedent and practice as “equity jurisdiction.” Sometimes a bill in equity would be dismissed because there was no “equity jurisdiction,” and sometimes this phrase was used in dismissing an equitable claim under the adequacy rule. But equity jurisdiction is not jurisdictional in the modern procedural sense. Id. at 88. Justice Frankfurter in Colegrove agreed with the district court that the case should be dismissed “for want of equity” because the relief the plaintiff sought was beyond the courts’ authority to grant. Colegrove v. Green, 328 U.S. 549, 551–52 (1946). 186. The potentially confusing terminology that Holmes and Dobbs discuss is used in Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867), which was a political question case insofar as it held that a court could not control a discretionary function. Refusing Mississippi leave to file, Chief Justice Chase said that “this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” Id. at 501. He did not deny that the case fell into the Court’s original jurisdiction under Article III— Mississippi had sued a citizen of another state, President Johnson being from Tennessee—but did conclude that no injunction would be issued. That conclusion rested on the unavailability of remedies that would control executive or political discretion. Id. at 499 (concluding that the President’s function under the Reconstruction Acts was not ministerial, but executive and political). Chief Justice Chase likely believed that that for a court to enjoin an executive official with respect to a proposed non-ministerial act that was neither a tort nor an enforcement proceeding would have been to exercise political and not judicial power. Neither the executive nor the legislature, Chief Justice Chase wrote, “can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.” Id. at 500. That statement and its caveat suggest that any constitutional problem was specifically with the remedy. The reference to proper cases suggests, for example, that if one of those statutes bore on a dispute between private people, or an ex post action for damages against an officer, the courts would perform their usual function of assessing constitutionality. 2017] THE POLITICAL QUESTION DOCTRINES 493 c. Substantial federal questions in the Supreme Court of the United States Like most legal principles, the Court’s political question doctrine has some straightforward applications. Because that doctrine is one of federal law, state courts are required to apply it. When the Supreme Court had much more mandatory appellate jurisdiction over the state courts than it has today, the Court developed the principle that an appeal from a state court decision that presented no substantial federal question could be dismissed for want of statutory jurisdiction instead of being decided on the merits.187 If the state court was clearly correct under the Court’s precedent, an appeal presented no substantial federal question.188 Perhaps paradoxically, a conclusion about the merits of the federal question implied that the Court had no jurisdiction under the statute governing appeals from state courts. In the same line of cases, the Court came to the conclusion that when a state court was obviously right, either affirmance, or dismissal for want of a substantial federal question, was a permissible outcome.189 When it did either, the Court was responding to the substance of the state court’s decision. In the early twentieth century, the Court decided three cases involving the Guarantee Clause that illustrate the two options provided by its doctrine and the substantive grounds of even a dismissal for want of jurisdiction. The first, Pacific States Telephone, originated in the Oregon courts, where Oregon prevailed on the merits. The case then came to the Supreme Court of the United States via writ of error.190 As discussed above, the Court relied on Luther for the proposition that Congress’s recognition of Oregon as a state, with the implication 187. Throughout the Court’s history, its appellate jurisdiction over the state courts but not the federal courts has depended on the lower court’s resolution of a federal question. See Herbert Wechsler, The Appellate Jurisdiction of the Supreme Court: Reflections on the Law and the Logistics of Direct Review, 34 WASH. & LEE L. REV. 1043, 1045, 1048 (1977) (discussing the history and development of the Supreme Court’s appellate jurisdiction, in particular the expansion of the Supreme Court’s appellate jurisdiction due to the “enormous growth of federal enactments and judicial extrapolation of the constitutional restraints upon state action”). Compare 28 U.S.C. § 1254 (2012) (giving the Court certiorari jurisdiction over all decisions by the federal courts of appeals), with 28 U.S.C. § 1257 (2012) (giving the Court certiorari jurisdiction only over state court decisions that turn on a federal question). 188. See Francis J. Ulman & Frank H. Spears, Dismissed for Want of a Substantial Federal Question, 20 B.U. L. REV. 501, 513–16 (1940) (describing development of the doctrine). 189. Equitable Life Assurance Soc’y v. Brown, 187 U.S. 308, 314–15 (1902). Like all three of the political question cases discussed in this Section, Equitable Life Assurance Society was written by Justice, later Chief Justice, Edward Douglass White. 190. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 136–37 (1912). 496 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 deprive either the Supreme Courts of Ohio or the United States of jurisdiction, and the Chief Justice made clear that his Court was deciding the merits. It is apparent from these reasons that there must either be a dismissal for want of jurisdiction because there is no power to reexamine the state questions foreclosed by the decision below and because of the want of merit in the Federal questions relied upon, or a judgment of affirmance, it being absolutely indifferent as to the result which of the two be applied.203 Because of “the subject-matter of the controversy and the Federal characteristics which inhere in it,” the Court decided to affirm rather than dismiss.204 It thereby decided the case on the merits. For the White Court the political question doctrine was not a jurisdictional limitation. It was a principle of federal law that governed decisions on the merits in both state and federal court. As such, it could be so clearly correctly applied by a state court that the Supreme Court of the United States could either dismiss an appeal or affirm. d. Justiciability Although the Supreme Court has not provided a canonical account of justiciability, its use of the terminology and the pattern of results just described yield a reasonably coherent understanding. A question or issue is nonjusticiable when its resolution is confided to a political actor whose conclusion will be absolutely binding on the courts. A claim is nonjusticiable when the relationship between political and judicial power means that no relief can be granted on it, and a case with no justiciable claim is not justiciable. Justiciability is distinct from subject matter jurisdiction in that a court can have jurisdiction to decide a case that turns on nonjusticiability, and indeed a court can award relief in a case in which an issue is nonjusticiable. When a plaintiff with a meritorious claim relies on the political branches’ recognition of a foreign government, for example, the political question doctrine underlies part of the court’s reasoning in a successful suit. III, he likely meant a dispute in a general sense rather than a lawsuit. Hildebrant was in his Court as one of the “cases” arising under the Constitution and laws of the United States to which the Constitution extends the federal courts’ jurisdiction, not one of the “controversies” listed in Article III. See U.S. CONST. art. III, § 2 (extending judicial power to enumerated cases and controversies). 203. Hildebrant, 241 U.S. at 570. 204. Id. 2017] THE POLITICAL QUESTION DOCTRINES 497 The difference between jurisdiction and justiciability explains why the political question doctrine generally applies in state court. When some source of federal law assigns final decisional authority to a political actor, the state courts must respect that federal rule just as much as the federal courts must. State courts may not interfere with the political discretion of federal political actors. State courts are not, however, subject to the jurisdictional limits of Article III.205 In general they must implement the political question doctrine created by federal law, as they must implement other principles of federal law that are not confined to federal institutions the way Article III is. 2. Baker v. Carr, Jurisdiction, and Finality Contrary to common impression, Justice Brennan’s opinion in Baker classifies the political question doctrine as one of non-judicial finality, not as a limitation on Article III or statutory jurisdiction. Baker treated subject matter jurisdiction and justiciability as distinct questions.206 The Court thus recognized that the political question doctrine could govern cases within the courts’ jurisdiction, as had happened in Luther, Coleman, and Hildebrant. The Court in Baker explicitly distinguished between subject matter jurisdiction and justiciability. A careful reading of the opinion, and in particular the now much-quoted paragraph that lists six characteristics of prior political question cases, shows that the Court regarded that doctrine as producing non-judicial finality as to some legal questions.207 An examination of the cases that Justice Brennan had 205. We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution or, in this case, a federal statute. ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (citations omitted). The ASARCO Court had no occasion to consider whether any federal non-jurisdictional principles of justiciability might apply in state court. 206. Baker v. Carr, 369 U.S. 186, 196 (1962) (concluding that the district court dismissed because it lacked subject matter jurisdiction and the plaintiffs did not state a justiciable cause of action). The Court then discussed subject matter jurisdiction, standing, and justiciability under separate headings. Id. at 198, 204, 208. 207. 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 498 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 reviewed earlier in the opinion, cases that form the basis of that paragraph, shows that all six characteristics were indicators that a political actor had the last word in the application of law to fact. Justice Brennan undertook to distinguish all of those cases from Baker itself, so he had no occasion to state general principles governing the political question doctrine.208 Although he did not offer a comprehensive account of the doctrine, he treated political questions as issues on which a non- judicial federal decision maker was final, and he did not present the doctrine as a limit on the Article III jurisdiction.209 The Court’s review of earlier cases begins by formulating the question as one of finality. “We have said that ‘In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.’”210 When the Court decided Baker, its most recent political question decision outside of the apportionment context was Coleman v. Miller. Justice Brennan’s language in Baker strongly suggests that Coleman provided a template for the first two features his opinion listed.211 In Coleman v. Miller . . . this Court held that the questions of how long a proposed amendment to the Federal Constitution remained open 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. Id. at 217. 208. “Since that review [of earlier cases] is undertaken solely to demonstrate that neither singly nor collectively do these cases support a conclusion that this apportionment case is nonjusticiable, we of course do not explore their implications in other contexts.” Id. at 210. 209. Justice Brennan discussed the Court’s earlier political question cases in order to distinguish them from Baker. A doctrine of non-judicial finality for federal political actors would not bar a suit like Baker, so the account that Justice Brennan gave of the earlier cases was very much in keeping with his conclusion in the case before the Court. 210. Baker, 369 U.S. at 210 (quoting Coleman v. Miller, 307 U.S. 433, 454–55 (1939)). 211. Id. at 217. 2017] THE POLITICAL QUESTION DOCTRINES 501 parties that the King had annulled prior grants.224 The discretionary decision was whether to make the treaty. The legal questions involved public rights: the power of the King of Spain to act through a treaty, and the resulting sovereign and proprietary interests of the United States. The treaty, an act of the United States as a sovereign operating with respect to other sovereigns, bound U.S. courts as to the legal assumptions on which it rested. Braden is an example of non-judicial finality and not lack of jurisdiction. The Court in Braden did not deny its authority to decide, or that of the trial court. Rather, it affirmed on the merits a judgment that rested on the assumption that the treaty accomplished what the United States and Spain said it accomplished. The King’s power to cancel certain land grants was used as a premise for decision, not as a bar thereto.225 224. It was for the President and Senate to determine whether the king, by the constitution and laws of Spain, was authorized to make this stipulation and to ratify a treaty containing it. They have recognized his power by accepting this stipulation as a part of the compact, and ratifying the treaty which contains it. The constituted and legitimate authority of the United States, therefore, has acquired and received this land as public property. Id. at 657–58. 225. The second case cited as an example of policy discretion demonstrably committed to another branch also involved a treaty, along with a later statute that affected its operation. Taylor v. Morton, 23 F. Cas. 784 (Curtis, Circuit Justice, C.C.D. Mass. 1855) (No. 13,799) (deferring to executive and legislative branches on the question whether a foreign sovereign has violated a treaty), aff’d, 67 U.S. (2 Black) 481 (1862). The plaintiff, an importer of Russian hemp, claimed that a lower tariff rate for hemp imported from India was inconsistent with a treaty giving Russian imports most-favored-nation status. Id. at 784–85. Justice Curtis, anticipating the Court’s decision in Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581 (1889), maintained that a later-enacted statute would override a treaty if they conflicted. Taylor, 23 F. Cas. at 785. He was not, however, willing to conclude that the later statute with the lower tariff violated the treaty. Is it a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such a promise? I apprehend not. Id. at 787. Because those questions were confided to Congress, it was “immaterial” to the court whether the statute violated the treaty. If it did not, “the plaintiff [had] no 502 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 The fourth characteristic that indicates a political question, “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government,”226 also very likely derived from a case that rested on non-judicial finality, Field v. Clark. That case treated congressional certification of an enrolled bill as conclusive. After discussing Coleman and the enactment of constitutional amendments, Justice Brennan in Baker said, Similar considerations apply to the enacting process [for statutes]: “The respect due to coequal and independent departments,” and the need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether, as passed, it complied with all requisite formalities.227 Once again, Justice Brennan probably drew his phraseology, here the word “respect,” from the earlier case. Having concluded that the bill as enacted was the authoritative text, the Court decided Field on the merits. The fifth characteristic Justice Brennan canvassed, “an unusual need for unquestioning adherence to a political decision already made,”228 was also a ground of non-judicial finality, not lack of jurisdiction. Earlier in Baker, Justice Brennan had discussed “this Court’s refusal to case.” Id. If it did, Congress’s act was “the municipal law of the country,” and complaints should be addressed to the political branches, not the courts. Id. Justice Brennan in Baker cited Taylor without elaboration, 369 U.S. 186, 211 n.32 (1962), leaving to inference how Taylor involved standards that defy judicial application or the exercise of discretion demonstrably committed to a political branch. On the latter point, Congress demonstrably has the power to pass legislation that reflects the state of U.S. foreign relations, for example its relations with Russia concerning tariffs. On the former point, the question whether one party to a treaty has breached it, or has decided not to insist on it, could be very difficult for a court to resolve. Not only is international law often vague, but courts do not have the information about foreign relations necessary to answer such questions. One party to a treaty might quietly agree to allow the other to act in a way inconsistent with it, perhaps in return for some seemingly unrelated concession on another issue. Whether Russia had breached the treaty, or whether a seemingly inconsistent U.S. tariff was nevertheless consistent with this country’s obligations under the treaty, was by itself a question of law. Relations between nations, like relations between individuals, are not only about legal rights. Whether to assert a legal position is a question of policy, not law, and nations, like individuals, may have rights that they do not wish to assert. If the United States acts on the assumption that a treaty permits some action, like adopting a tariff rate, it decides both law and policy: what is this country entitled to, and what is it prepared to assert it is entitled to? 226. Baker, 369 U.S. at 217. 227. Id. at 214 (quoting Marshall Field & Co. v. Clark, 143 U.S. 649, 672, 676–77 (1892)). 228. Id. at 217. 2017] THE POLITICAL QUESTION DOCTRINES 503 review the political departments’ determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency’s nature demands ‘A prompt and unhesitating obedience.’”229 The “prompt and unhesitating obedience” at issue in Martin v. Mott,230 the case Justice Brennan relied on, was a militia member’s obligation to report for duty at the President’s call. Whether that call really was in response to the exigencies set out in the militia statute was up to the President, whose decision was not to be questioned elsewhere. Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia- man who shall refuse to obey the orders of the President?231 In Martin, the Court relied on the political question principle to supply a premise on which to decide the merits. Mott sued Martin, and Martin’s defense relied on the court martial’s judgment, which in turn relied on the President’s order, which rested on the President’s determination. The Court did not suggest that there was any lack of jurisdiction in the court martial, in the New York court in which Mott first sued, or on writ of error to it from the highest court of New York. Justice Brennan’s recognition that all those tribunals had jurisdiction shows that his fifth characteristic was about non-judicial finality, not lack of jurisdiction. For Justice Brennan, prior cases sought to avoid “embarrassment from multifarious pronouncements by various departments on one question”232 by giving conclusive effect to prior political-branch decisions. The sixth characteristic he listed was also a marker of non- judicial finality. Often the political branches act without a pronouncement on anything, but they frequently make such pronouncements when they have to apply a legal standard to some factual situation. Before summarizing the earlier political question cases, Baker had explained that many questions involving foreign relations “uniquely demand single-voiced statement[s] of the 229. Id. at 213 (quoting Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827)). 230. 25 U.S. (12 Wheat.) 19 (1827). 231. Id. at 29–30. Martin was a collateral challenge to Mott’s conviction by a court martial for failing to report. Martin was a deputy marshal who had seized Mott’s property to carry out a fine imposed by the court martial whom Mott sued for replevin. Id. at 28. 232. Baker, 369 U.S. at 217. 506 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 from reaching into the political sphere. In both contexts, the doctrine draws the line between political and judicial power in cases in which that line’s location is subject to doubt, because the powers in some sense overlap one another. It draws the line in favor of a political decision maker, rather than the courts. The Court’s rationale for non-judicial finality can be seen in three leading cases: Luther, Coleman, and Nixon v. United States. Each of them has two features that explain why the courts would treat a non-judicial decision as final. Chief Justice Taney made the first feature plain in Luther: the identity of a State’s legitimate government has very important consequences for a great many people. As he explained, if the Charter government of Rhode Island had been unlawful, then it illegally collected taxes and used force with no legal justification.237 In similar fashion, the content of the Constitution’s text has consequences of the highest importance for everyone in the country. In impeachment cases, the widespread consequences of a single legal decision flow from identifying officers who may lawfully exercise power. Whether one President has been removed and replaced with someone else is a momentous question for the entire country. In each of those cases, the application of a legal rule to one particular set of facts affects the public at large in a fundamental way. The second feature shared by those three leading cases concerns the legal standards involved. In all of them, the applicable legal rule involved highly delicate normative questions that the rules themselves did not explicitly resolve. Whether a purported state government is lawful is one of political legitimacy. In Chief Justice Hughes’s view in Coleman, the timeliness of a constitutional amendment depended on the nation’s continuing need for change, which in turn depended on many political, economic, and social factors.238 Those are judgments about the public interest on a very broad scale. In an impeachment trial, the Senate must decide whether the impeached officer has engaged in culpable official conduct that makes that person unfit to exercise power.239 237. Luther v. Borden, 48 U.S. (7 How.) 1, 38–39 (1849). 238. See supra note 214. 239. Discussing the Senate as a court of impeachment, Alexander Hamilton, writing under his pen name “Publius,” wrote, The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be 2017] THE POLITICAL QUESTION DOCTRINES 507 The other branch of the doctrine, relied on in Gilligan, also rests on those two rationales, with the second being especially prominent. That aspect of the doctrine limits judicial intrusion into political discretion, and operates where that discretion is at its height: with respect to military and national security matters. Gilligan itself provides an instructive example. In planning for riots, or dealing with a riot, political decision makers face questions of life and death. They must assess and weigh risks concerning the deaths rioters may cause and the deaths the military may cause in putting down a riot. Just as too much force can needlessly kill those against whom it is directed, too little force, or force badly deployed, can let violence continue when it could have been contained. Slightly below the surface in Gilligan is the other consideration found in the non-judicial finality cases. As riot control exemplifies, military decisions regularly affect a large number of people in much the same way. The Ohio National Guard’s riot planning affected all potential participants in and victims of rioting, and when implemented that policy would apply to hundreds or thousands of people at once. Together, those two features can make a strong case for judicial deference to political decisions that normally would be reviewed by the courts, and for judicial non-interference with discretion. When a single legal judgment affects many people, having one voice speak first and conclusively is of great value. Luther makes this point. To comply with the law, people need to know who the law-givers and other denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. THE FEDERALIST NO. 65, at 338 (Alexander Hamilton) (George W. Carey and James McClellan, eds., 2001); cf. CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 37 (1974) (arguing that impeachable offenses, like treason and bribery, “are offenses (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute book”). All three criteria call for normative judgment and the second and third call for judgments about the public interest and the obligations of citizenship. Another aspect of the applicable legal rule may also matter, though it does not appear in the Court’s most prominent cases. As the Court stressed in Field, the rules for adoption of statutes apply to facts that arise in the legislative process. Congressional officers who certify passage of a bill judge their own conduct and that of the houses for which they act. Those rules introduce another source of delicacy in their application: because legislative officers are called on to report on their own actions, to say that they have reported incorrectly is close to saying that they are not just mistaken, but lying. That led the Court in Field to invoke the respect due to coordinate branches and the Court in Baker to echo that sentiment. 508 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 government officials are. If private people cannot tell which individuals really are government officials, their uncertainty will undermine many important activities, like paying taxes and making contracts. Professor Charles Black emphasized the same factor with respect to presidential impeachment.240 Wondering whether a President who had been convicted by the Senate had actually been removed could plunge the country into chaos. The sooner a conclusive answer is available, the less damage that doubt will cause. Under those circumstances, the ordinary arrangement in which legislatures and executives act, subject to judicial review at some indefinite time in the future, can turn uncertainty into paralysis. Second, some legal norms lend themselves to application by politically knowledgeable and accountable decision makers. When the Federal Convention chose the Senate and not the ordinary courts for the trial of impeachments, it put the question whether the Chief Executive and other officers could be trusted with the people’s power in the hands of the people’s representatives. Those representatives would be familiar with the judgments that must be made in matters of state. Judges are selected for technical expertise in law not for their ability to decide how to deal with riots, or whether a state government satisfies basic principles of political morality of the American republic. Those practical arguments align with the concepts of judicial and political power. The quintessential role of the courts is the neutral application of law to specific facts that involve specific parties. Balancing competing considerations involving large numbers of people, and deciding for themselves what is right and wrong, are tasks for the politically accountable. The larger the number of parties affected, and the more value-laden the legal standards involved, the more any particular decision smacks of political and not judicial power. Underlying the political question doctrine is thus a paradigm of the judicial role.241 The Court’s cases reflect the conclusion that in some 240. Black described the scenario in which a President is removed by the Senate and then reinstated by the Court, possibly by a 5-4 vote, and said, “I don’t think I possess the resources of rhetoric adequate to characterize the absurdity of that position.” BLACK, supra note 239, at 54. 241. Luther invokes another feature of the judicial power that arises from the fact that courts decide cases about particular parties: different adjudications can resolve the same factual issue differently. As Chief Justice Taney explained, the plaintiffs in Luther raised questions of fact that were proper for a jury. Different juries, however, might resolve the factual dispute differently, with one concluding that the charter government had stayed in power and another that it had been replaced with the Dorr 2017] THE POLITICAL QUESTION DOCTRINES 511 argument, counsel for Georgia maintained that “the great objection, of the other side . . . that the subject-matter of this bill, the case stated, and the relief sought, are political in their nature,—is without force.”248 The Court was not persuaded, concluding that it “possesse[d] no jurisdiction over the subject-matter presented in the bill for relief.”249 That subject matter included both “political questions” and “rights, not of persons or property, but of a political character . . . . For the rights for the protection of which our jurisdiction is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and privileges.”250 Courts protect a different kind of interest. “No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court.”251 In both Mississippi v. Johnson and Georgia v. Stanton, the Court appears to have concluded that it lacked jurisdiction over the subject matter of the suit, where by the subject matter it meant the interests the plaintiffs presented for adjudication; those interests were political, and hence not the kind of legal rights that courts protect. In similar fashion, the Court today regards standing as a limitation on the federal courts’ subject-matter jurisdiction. Care must be taken in interpreting Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 53 (1868). 248. Id. at 67. 249. Id. at 77. That conclusion meant that the Court did not have to consider the defendants’ argument that under Luther it was bound to regard the plaintiff government of Georgia as illegal, unrepublican, and provisional only, on the grounds that Congress had determined it to be so in one of the Reconstruction Acts. 250. Id. 251. Id. at 74 (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15, 20 (1831)). Writing for the Court in Georgia v. Stanton, Justice Nelson relied on a dictum of Chief Justice Marshall in Cherokee Nation. In the earlier case, the Cherokee Nation had sought an injunction in the Court’s original jurisdiction against the implementation of Georgia legislation that, said Justice Nelson, “if permitted to be carried into execution, would have subverted the tribal government of the Indians; and subjected them to the jurisdiction of the State.” Georgia v. Stanton, 73 U.S. (6 Wall.) at 74. The Court in Cherokee Nation found that the Cherokee Nation was not a state for purposes of the original jurisdiction. 30 U.S. (5 Pet.) at 20. Justice Nelson said in Georgia v. Stanton that Marshall’s majority “intimated that the bill [in equity in the original jurisdiction] was untenable on another ground, namely, that it involved simply a political question.” Georgia v. Stanton, 73 U.S. (6 Wall.) at 74 (quoting Cherokee Nation, 30 U.S. (7 Pet.) at 20). Marshall was concerned that the request “to control the Legislature of Georgia, and to restrain the exertion of its physical force . . . savours too much of the exercise of political power to be within the proper province of the judicial department.” Id. Marshall’s reasoning in Cherokee Nation closely resembles the Court’s in Mississippi v. Johnson. 512 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 statements about jurisdiction, not all of which really concern the fundamentals of judicial power. The interest of the plaintiff, however, does go to those fundamentals. If there are interests that are categorically excluded from the judicial purview, then a plaintiff seeking the vindication of only such interests brings to court a matter with which the courts are not concerned. When political rights fall into that excluded category, the Article III courts have no authority to give relief to protect them, whether that conclusion is explained under the rubric of standing or political rights or questions. It is hard to say how the Court today would apply its standing doctrine to the kind of sovereign interest asserted in Georgia v. Stanton. The main rationale for contemporary standing doctrine would not bar such a suit. That rationale is that litigation concerning interests that are widely or universally shared, like the people’s interest in compliance with the law, should be controlled by politically accountable officers, not by self-appointed private litigants.252 When a state sues through its political officers, that requirement is met. Quite possibly the current Court would think that a case like Georgia v. Stanton presents problems concerning the remedy, not the interest at stake. Whatever the status of rights of sovereignty may be today, one political interest definitely can support adjudication in Article III courts: the right to vote.253 The category of interests that Article III courts do not protect may be different today from the 1860s, but the contemporary standing cases show that the category still exists. III. THE LOWER COURTS’ JURISDICTIONAL POLITICAL QUESTION DOCTRINE In the last few decades a substantial number of lower court decisions have seriously misunderstood the Supreme Court’s political question doctrine. Several of the courts of appeals have decided cases that have the following characteristics: (1) the case was dismissed under the political question doctrine for want of jurisdiction; (2) the plaintiff was a private person seeking relief on the basis of principles of liability that 252. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983). In then-Judge Scalia’s view, the interests of the public at large—majorities as he puts it—should be protected by political actors, while the courts protect the rights of minorities who face distinct and particularized harm. Id. at 894–95. 253. See, e.g., Baker v. Carr, 369 U.S. 186, 208 (1962) (“A citizen’s right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution . . . .”). 2017] THE POLITICAL QUESTION DOCTRINES 513 apply between private persons; (3) the court found that granting the plaintiff relief would in some way be inconsistent with a policy decision concerning national security or foreign relations ostensibly made on behalf of the United States; (4) the plaintiff did not seek mandatory relief against the United States or one of its officials that would direct the performance of official functions; and (5) the court did not find that it was bound to treat as conclusive the application of law to fact by a political actor.254 None of those decisions has any foundation in the political question doctrine as the Supreme Court has applied it, nor did any of those cases fall outside the federal courts’ subject matter jurisdiction as constrained by Article III for the reason the court gave. The version of the political question doctrine the lower courts have developed in those cases is unsound.255 This Section will first give a number of examples of lower court cases that fit into the category just described. It will then explain how they do not rest on the Supreme Court’s political question doctrine, nor on any plausible understanding of the judicial power under Article III. 254. Many lower court political question cases do not meet that description and are consistent with the Supreme Court’s doctrine as described in this article. A significant number of cases do meet that description, and I think that any case that does is not a correct application of the Supreme Court’s precedents. The description refers to principles that govern liability between private parties, and not just to suits between private parties, so as to include suits against the United States under the Federal Tort Claims Act and other waivers of sovereign immunity that make the federal government liable when a private defendant would be. See, e.g., 28 U.S.C. § 1346(b)(1) (2012) (providing that the U.S. government is liable in tort when a private person would be). I refer to liability, not damages, because the law that applies between private parties might give rise to declaratory or injunctive relief, as under the Sherman Act. The important point is not that damages were sought, but that the remedy was not of the kind disapproved in Gilligan, a feature of the cases captured in the fourth part of the description. 255. To say that the lower courts’ doctrine is in error is not to say that any particular case was decided incorrectly. First, cases that follow applicable circuit precedent cannot be faulted on the grounds that the precedent is incorrect. Second, courts decide cases on the basis of the parties’ arguments, and often are under no obligation to identify an argument no party has made. If all parties agree that the political question doctrine is a constitutional limit on jurisdiction, a court may be allowed to accept that conclusion. It is also hard to say whether a court of appeals decides incorrectly when it follows a dictum from the Supreme Court that describes the Court’s cases, when the dictum is itself inaccurate. As discussed above, the Court has said that its political question cases rest on a limit on the Article III jurisdiction, but that is not correct, and the Court has never relied on that principle as part of its reasoning in deciding a case. 516 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 operations. An example is Carmichael v. Kellogg Brown & Root Services, Inc.268 Carmichael was an action by Annette Carmichael, wife of Sergeant Keith Carmichael, who had become disabled as a result of injuries suffered while serving in Iraq. In May 2004, Sergeant Carmichael was severely injured while riding in a truck operated by Kellogg Brown & Root (KBR) that was part of a military convoy traveling an extremely dangerous route.269 Annette Carmichael sued KBR in state court, alleging that the truck’s driver, a KBR employee, had been negligent.270 KBR removed the case to the U.S. District Court for the Northern District of Georgia and moved to dismiss for want of jurisdiction under the political question doctrine.271 The district court granted the motion and the U.S. Court of Appeals for the Eleventh Circuit affirmed.272 Relying on two of the so-called Baker factors, the Eleventh Circuit found that the district court lacked jurisdiction because the case presented a political question.273 268. 572 F.3d 1271 (11th Cir. 2009). 269. Id. at 1275–76, 1278. 270. Id. at 1278–79. 271. Id. at 1279. 272. Id. The district court dismissed the case rather than remanding it to state court. Section 1447(c) of Title 28 of the United States Code provides, “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c) (2012). 273. See Carmichael, 572 F.3d at 1296 (holding that inquiring into the cause of the accident would require the court to address matters assigned to other branches of government, a political question over which the court lacked jurisdiction). Similar to Carmichael is Taylor v. Kellogg Brown & Root Services, 658 F.3d 402 (4th Cir. 2011), in which the Fourth Circuit found a lack of jurisdiction on political question grounds over a tort claim by a service member who had been severely injured, allegedly as a result of negligence by KBR employees in connection with U.S. military operations in Iraq. Harris v. Kellogg Brown & Root Services, 724 F.3d 458 (3d Cir. 2013), cert. denied, 135 S. Ct. 1152 (2015), was a negligence claim by the parents and estate of a U.S. service member who was electrocuted while taking a shower in Iraq. The district court dismissed for want of jurisdiction on political question grounds. Id. at 463. The Third Circuit found that a case against a private contractor could under certain circumstances be dismissed for want of jurisdiction on political question grounds, id. at 465–66, and discussed in depth the appropriate analysis under its reading of Baker v. Carr, id. at 466–82, and the application of that analysis to different claims under different possible sources of law. The court of appeals ultimately concluded that the case depended on a choice of law question, which the district court had not resolved: if Pennsylvania law applied, the case contained no nonjusticiable issue, but if Tennessee or Texas law applied, some of the issues were nonjusticiable. The court of appeals remanded the case so the district court could identify the applicable substantive law and apply the court of appeals’s reasoning. Id. at 482. 2017] THE POLITICAL QUESTION DOCTRINES 517 Another decision treating the political question doctrine as a jurisdictional bar to claims of private liability is Spectrum Stores, Inc. v. Citgo Petroleum Corp.274 The plaintiffs, who were gasoline retailers, sued a number of petroleum production companies, some of which, like Citgo, are wholly or partially state-owned.275 The plaintiffs claimed that the defendants participated in conspiracies to fix prices and limit the production of oil in violation of the Sherman and Clayton Acts.276 Although no governments were sued, the pricing and production decisions at issue were in large measure those of governments that are members of the Organization of Petroleum Exporting Countries (OPEC).277 The Fifth Circuit concluded that the case should be dismissed for lack of jurisdiction on political question grounds.278 Largely accepting the arguments in a Statement of Interest submitted by the Department of Justice on behalf of several cabinet departments, the Fifth Circuit found that “adjudication of this case would result in the frustration of various objectives ‘of vital interest to the United States’ national security.’”279 The court of appeals did not decide whether the federal statutes on which plaintiffs relied entitled them to relief against the defendants.280 B. The Lower Court Cases and the Supreme Court’s Doctrine As I have explained, the Supreme Court’s political question doctrine has two branches, neither of which limits subject matter jurisdiction. The first, non-judicial finality, tells the courts how to decide cases, and sometimes tells them to withhold relief in a case over which they have jurisdiction. The second, limits on prospective remedies, similarly instruct the courts to withhold relief in cases they are authorized to decide. 274. 632 F.3d 938 (5th Cir. 2011). 275. Id. at 942. 276. Id. at 944–45. 277. Id. 278. Id. at 948. 279. Id. at 951–52 (footnote omitted). 280. Id. at 956. In addition to the U.S. Courts of Appeals for the D.C., Third, Fourth, Fifth, and Eleventh Circuits, the Second and Ninth Circuits have also held that the political question doctrine imposes limits on the subject matter jurisdiction of the federal courts. See, e.g., Saldana v. Occidental Petroleum Corp., 774 F.3d 544, 555 (9th Cir. 2014) (per curiam) (dismissing for want of subject matter on political question grounds); Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57, 73–74 (2d Cir. 2005) (same). 518 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 The lower court cases with which I am concerned do not fall into either of those categories. This Section will elaborate on the difference between the limited circumstances in which the political question doctrine limits the courts and the much more common circumstances in which the branches of government perform their ordinary functions. In those more usual circumstances, courts apply law to fact on their own, and while they may decide whether an official’s discretionary act complied with the law, they do not themselves exercise discretion. Because they misunderstand Baker and the earlier cases it expounds, the courts of appeals routinely fail to recognize that the political question doctrine mainly turns on non-judicial finality. Instead of looking for indicia that a political actor has been given authority to apply law to fact conclusively, as Justice Brennan did in Baker, they often find that the doctrine operates when the political branches have their usual relationship to the law, in which they are not final as the courts are. Many of the cases involve rules of liability that apply directly to government decision makers and those acting at their direction. Of course, the person who has a duty to comply with a legal rule is not in the position of a court; potential tortfeasors do not conclusively decide whether they have committed a tort. Unlike an adjudicator, a potential tortfeasor need know nothing about the content of the law. Someone who has never heard of negligence can take due care and so act lawfully, and a military commander with a very limited knowledge of the law of war can comply with it and so avoid personal liability. Being held to a rule and being called on to determine whether it has been violated are very different functions.281 Cases like Spectrum Stores involve executive officials who are charged with applying legal rules to someone else, but whose decisions nevertheless are not conclusive on that question the way that a court’s judgment is. The executive branch enforces the antitrust laws, but when it brings a prosecution under the Sherman Act the court decides for itself whether the statute has been violated. Non-judicial finality is very much the exception and not the rule, and when the political question doctrine is properly understood it will rarely be found to be applicable. 281. A similar distinction applies with respect to Congress, although the legal category involved is power and not duty. In voting on legislation, members of Congress often make judgments about its constitutionality. While the courts may give some level of deference to the legislature’s judgment, they are not absolutely bound thereby; if they were, judicial review as known in this country would not exist. 2017] THE POLITICAL QUESTION DOCTRINES 521 jurisdiction over a claim, a court cannot decide whether that privilege was available or not. Combatant privilege is part of a large body of rules that govern official conduct related to national security and foreign relations. Related principles apply to the activities of private persons who participate in government operations, such as military contractors.286 Conceived yet more broadly, foreign relations and national security law includes all the rules that bear on the foreign affairs and military operations of the United States. The Sherman Act is part of that law, especially because its so-called extraterritorial application can have major consequences for relations between the United States and other sovereigns.287 Not all the legal rules that regulate or affect foreign relations and national security are federal law. In a tort action, the plaintiff’s claim may arise from the law of the place of the tort, which may be a foreign country, or from the law of the plaintiff’s domicile, which may be a state of the union.288 But if federal law is applicable it ultimately controls in any American court. In a tort action growing out of military operations, the plaintiff’s claim may come from non-federal law, but the defendant’s combatant privilege may be based on statute or federal common law.289 Privileged Combatants Under the Geneva Protocol of 1977 Concerning International Conflicts, 42 DUKE J. LAW & CONTEMP. PROBS. 5, 5 (1978) (stating that individuals who enjoy combatant privilege have “the legal right, limited by the laws and customs of war, to exercise coercion and violence in a public armed conflict situation”). 286. The law of war recognizes a distinct category of “persons authorized to accompany the armed forces,” which includes civilian government employees and government contractors. LAW OF WAR MANUAL, supra note 285, at 142, 144. 287. In F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004), the Supreme Court read the Foreign Trade Antitrust Improvements Act consistent with its practice to construe “ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations” because “America’s antitrust laws, when applied to foreign conduct, can interfere with a foreign nation’s ability independently to regulate its own commercial affairs.” Id. at 164–65. 288. Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 405 n.6 (4th Cir. 2011) (noting that the parties agreed that Virginia law applied to Taylor’s negligence claim). 289. The federal source of federal officers’ official privilege was central to the important case of In re Neagle, 135 U.S. 1 (1890), in which Deputy U.S. Marshal David Neagle sought discharge through habeas corpus from state custody on a murder charge. Id. at 3–6. Neagle had been appointed as a bodyguard for Justice Field and had killed David Terry when, the Court found, Terry assaulted Field. Id. at 52–53. The Court found that Neagle was eligible for relief through habeas corpus because he had an “element of power and authority asserted under the government of the United States.” Id. at 54. For that reason, Neagle was being held in state custody for “an act 522 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 Taken together, those principles perform the primary function of legal rules: they determine whether conduct is lawful. When courts apply them, those principles perform two other functions specifically related to the role of the judiciary in the constitutional system. First, by applying the substantive law of national security and foreign relations, courts respect the discretion of the political branches, including the Executive. By applying statutes that Congress has validly adopted, courts implement the legislature’s policy decisions. Many rules confer some kind of authority on executive officials. Combatant privilege does so, by making lawful all legitimate acts of hostility; within the bounds set by the law, military decision makers may choose the strategy and tactics they think best suited to accomplishing the nation’s goals. Second, by applying the substantive law relating to foreign relations and national security, courts avoid interfering with, and to some extent help implement, the foreign and national security policy of the United States. For example, the foreign policy of the United States is that foreign sovereigns may be sued by private parties with respect to their commercial activities. The Foreign Sovereign Immunities Act adopts the so-called restrictive theory of sovereign immunity, according to which sovereigns have immunity for their governmental conduct but not for their dealings in the marketplace.290 Congress endorsed that approach to immunity when it adopted the statute, and the federal courts both respect and implement Congress’s choice when they apply the relevant substantive law, like the law of contract, to cases in which foreign governments are properly sued. A court that refused to hear such a case would disrupt U.S. foreign policy. Only substantive rules can fully perform those three functions; jurisdictional limits cannot do so. That is clear with respect to determining whether conduct is lawful, which substantive rules accomplish and jurisdictional limits prevent. Perhaps less obvious, but crucial in assessing the lower courts’ political question cases, is that only by applying substantive rules can the judiciary properly respect political discretion and U.S. policy. A court can defer to discretionary done or omitted in pursuance of a law of the United States” as required to be eligible for relief under the habeas corpus statute. Id. at 41. 290. See Republic of Austria v. Altmann, 541 U.S. 677, 690–91 (2004) (noting that the Foreign Sovereign Immunity Act adopts the restrictive theory of sovereign immunity). 2017] THE POLITICAL QUESTION DOCTRINES 523 choices by the political branches only if it knows the scope of their discretion, which only substantive rules can tell it. Two of the lower court cases illustrate this point. In Schneider, the D.C. Circuit concluded that the political question doctrine deprived it of jurisdiction, and that the doctrine did so in order to protect executive discretion and U.S. foreign policy from judicial interference.291 Because it did not address the merits, however, the court was not in a position to decide whether there had been a legitimate exercise of executive discretion and therefore was not in a position to know what U.S. foreign policy was. If the Constitution and laws of the United States authorized the National Security Advisor to encourage the elimination of a foreign political figure, then even if Secretary Kissinger did what the plaintiffs claimed he did, his acts were within his discretion and constituted the foreign policy of the United States. If Secretary Kissinger lacked that authorization, then the court was neither respecting executive discretionary choices nor giving appropriate deference to foreign policy; it was allowing lawless acts by individuals to avoid the liability imposed by the substantive law. Spectrum Stores is similar. The plaintiffs claimed that actions of foreign firms, some of them owned by governments, violated U.S. antitrust statutes. The court of appeals agreed with the executive branch that the court had no jurisdiction because the policy of the United States was to manage through negotiations issues concerning foreign sovereigns’ decisions with respect to their natural resources.292 Those positions contradicted one another, and the contradiction could be resolved only by deciding the merits and in particular by deciding whether the Sherman Act applied as the plaintiffs said it did. If the plaintiffs were right, and the antitrust statutes are constitutional 291. See Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005). 292. By adjudicating this case, the panel would be reexamining critical foreign policy decisions, including the Executive Branch’s longstanding approach of managing relations with foreign oil-producing states through diplomacy rather than private litigation, as discussed in the government’s amicus brief and in several official statements of administration policy. In accordance with this policy, the Department of Justice has, upon thorough consideration, declined to bring a Sherman Act case on behalf of the United States. Any merits ruling in this case, whether it vindicates or condemns the acts of OPEC member nations, would reflect a value judgment on their decisions and actions—a diplomatic determination textually committed to the political branches. Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 951 (5th Cir. 2011) (footnote omitted). 526 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 Drawing on Baker’s reference to judicially manageable standards, a number of cases have found that the legal rule on which the plaintiff relied cannot be applied by the federal courts because it requires that they second-guess foreign policy or national security choices in ways that would go beyond the judicial role.301 Few if any rules of liability on which a plaintiff may rely are likely to put such demands on the courts. Ordinary tort negligence almost certainly does not do so. Negligent conduct creates an unreasonable risk.302 Courts routinely decide whether law enforcement officers acted reasonably in making split-second decisions with life and death in the balance.303 Military judgments are similar. If somehow the law on which the plaintiff relies calls on a court to make a military or foreign policy judgment that federal courts may not make, principles of official privilege can obviate the problem by incorporating deference to official judgment. The more deference the courts give official decision makers, the less the judges are substituting their own judgment for those of the Executive. The privilege of federal officials derives from the Constitution, federal statutes, or unwritten federal law. The Supreme Court has interpreted the latter two sources of legal rules so as to provide military decision makers with appropriate 301. For example, Aktepe v. United States, 105 F.3d 1400 (11th Cir. 1997), was a damages claim by members of the Turkish Navy for wrongful death and personal injury arising out of an accident in a training exercise with the U.S. Navy. Id. at 1401–02. Suit was brought pursuant to statutory waivers of sovereign immunity and the applicable substantive law was that of wrongful death. Id. at 1402. The Eleventh Circuit found that the case presented a nonjusticiable political question in part because “no judicially discoverable and manageable standards exist for resolving the questions raised by this suit. In order to determine whether the Navy conducted the missile firing drill in a negligent manner, a court would have to determine how a reasonable military force would have conducted the drill.” Id. at 1404. As discussed above, Baker used the lack of judicially manageable standards as an indicator of non- judicial finality. 302. The law of negligence protects bodily security against “against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue.” Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99 (N.Y. 1928), reh’g denied 164 N.E. 564 (1928). 303. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court considered whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public- endangering flight by ramming the motorist’s car from behind. Put another way: Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders? Id. at 374. 2017] THE POLITICAL QUESTION DOCTRINES 527 protection from undue judicial second-guessing.304 The courts have at least as much flexibility in shaping unwritten federal law as they do in interpreting written federal law, and they can derive requirements of deference from the general principle that official privilege exists in order to enable officers to perform their function effectively. Substantive rules have another feature that points up the error of the lower courts’ jurisdictional doctrine: they apply in state court, where the limits of Article III do not. If the lower courts are right, the federal judiciary is barred from deciding highly sensitive issues and cases that the state courts are free to decide as far as federal law is concerned. Had the plaintiffs in Schneider sued Secretary Kissinger in New York state court, no federal rule would have kept the court from deciding the case, but federal principles of privilege, immunity, and deference would have protected Kissinger from liability that would unduly interfere with his federal function. State courts follow their own rules about jurisdiction, but when they have it, Article VI requires that they apply federal law that governs the relations of the parties.305 The lower courts’ jurisdictional political question doctrine thus subverts Article III’s purpose and does not implement it. The Constitution provides for federal courts so that federal law, federal interests, and federal officials will have an impartial forum free from local prejudice.306 Those courts can perform that function only if they 304. In Chappell v. Wallace, 462 U.S. 296 (1983), the Court found that special factors counseled against inferring a cause of action under the Constitution for service members against their superior officers. Id. at 298, 305. In Feres v. United States, 340 U.S. 135 (1950), the Court concluded that the Federal Tort Claims Act does not make the United States liable for injuries arising out of military service. Id. at 146. 305. The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, “bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them.” Howlett v. Rose, 496 U.S. 356, 372 (1990) (quoting Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 508 (1954)). 306. Cases involving foreign relations and national security generally turn on federal law and affect this country’s foreign relations. Hamilton regarded as axiomatic “the propriety of the judicial power of a government being coextensive with its legislative,” noting that “[t]he mere necessity of uniformity in the interpretation of the national laws, decides the question.” THE FEDERALIST NO. 80, at 412 (Alexander Hamilton) (George W. Carey and James McClellan, eds., 2001). The importance of a 528 AMERICAN UNIVERSITY LAW REVIEW [Vol. 67:457 have jurisdiction. Article III and the statutes give them jurisdiction in a wide range of cases involving foreign relations and national security, and a version of the political question doctrine that denies that jurisdiction departs from the Constitution. CONCLUSION As the Supreme Court has developed it, the political question doctrine implements limits on the judicial power but not on the cases Article III courts may decide. The doctrine reflects the quite limited assignments of final decisional authority to political actors, and the basic but rarely relevant principle that courts may not exercise political power through their mandatory remedies. In both respects, it tells courts how to decide cases, and then leaves them to decide the disputes that are within their jurisdiction. The doctrine reflects a coherent view of the nature and limits of the federal judicial power, but to take it as a limit on the cases federal courts may decide is an easy but serious error. John Marshall said that no political question could be made in his court, not that his tribunal could not decide any case involving a political question. federal forum for cases affecting U.S. foreign relations “rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART.” Id.