Misunderstood, Misconstrued, and Now Clearly Dead: The 'Political Question Doctrine' in Cases Arising in the Context of Foreign Affairs

Abstract

Lower federal courts often cite the “political question doctrine” when dismissing as nonjusticiable individual rights cases arising in the context of foreign or military affairs, especially since the 1962 case of Baker v. Carr. Similarly, such courts have inappropriately begun citing “special factors” counselling hesitation in refusing to recognize constitutional claims (“Bivens claims”) in similar foreign policy contexts. However, a review of 200 years of history reveals that the Supreme Court has never applied the so-called “political question doctrine” as a true justiciability doctrine to dismiss individual rights claims, even those arising in the context of foreign or military affairs. In fact, the Supreme Court has almost always rejected the “political question doctrine” as a basis to preclude adjudication of individual rights claims, even in the context of foreign or military affairs. Although the Supreme Court has invoked a “political question doctrine” in some cases, a close review of those cases demonstrates that rather than dismissing the cases as “nonjusticiable,” the Court in fact adjudicated the case by finding that either the executive or Congress acted constitutionally within their power or discretion. Lower court, and some scholars, are misreading these Supreme Court cases by citing them in support of dismissal based on the doctrine. The recent post-9/11 Supreme Court cases of Hamdi v. Rumsfeld, Rasul v. Bush, and Bush v. Boumediene further demonstrate that the doctrine does not exist as a nonjusticiability doctrine in individual rights claims (if it exists as such at all), even in those involving foreign and military affairs. In case there remained any doubt, in 2012 case of Zivotofsky v. Clinton, the Supreme Court for all practical purposes sounded the death knell of the application of the “political question doctrine” as a justiciability doctrine with regard to individual rights claims, including those arising in a foreign policy context. Rather than continuing to erroneously dismiss such cases on political question grounds or using “special factors” as nonjusticiable, federal courts should adjudicate the claims by ruling which branch has what power under the Constitution, and whether the branch acted within its powers. This is an important function of the courts, and one vital to legal and political transparency and democracy. Indeed, this is the approach the Supreme Court has consistently taken – even if the Court has not always well-articulated this approach - and which it affirmed in Zivotofsky.