The Political Remedies Doctrine

Abstract

This article describes and analyzes a hitherto unrecognized doctrine—the political remedies doctrine. This doctrine maintains that courts ought not adjudicate separation of powers claims until both political branches of government have asserted their rights. The doctrine has escaped analysis (and even explicit notice) because judges camouflage it, employing it while invoking the more familiar rubrics of ripeness, standing, political questions, and equitable discretion. Justice Powell provided the leading articulation of the doctrine, but the Supreme Court as a whole has never squarely endorsed it. The political remedies doctrine, however, has played a surprisingly important role in the lower courts, helping justify refusal to adjudicate war powers cases and cases arising from President Trump’s challenges to the constitutional order. While invoked as a neutral rule, the courts always apply it to shield presidential acts from judicial scrutiny and never to protect acts of Congress from activist adjudication. As such, it tends to aid aggrandizement of presidential power. Partly for that reason, this doctrine has great potential to unravel the rule of law and even, during times of partisan stress, to hasten the collapse of the separation of powers undergirding our democracy. This article claims that the Courts should not apply this doctrine, except perhaps to avoid adjudication of challenges to bipartisan legislation signed by the President. It employs a Coasean property rights analysis to provide new insights germane not just to this doctrine, but also to debates about the proper role of bargaining in resolving separation of powers questions, general theory about the relationship between law and politics, and understandings about how the courts should approach justiciability doctrine more generally. That Coasean analysis shows that judicial resolution of separation of powers claims on the merits does not preclude political bargaining, but simply determines a baseline for future negotiations. Conversely, dismissing claims because of the potential for political bargaining functions much like a ruling on the merits, also creating a constitutional baseline for future political negotiations. Hence, justiciability rulings do not involve a choice between political and judicial resolution of disputes, but rather a choice about baseline power allocations form which to conduct future bargaining. Thus, analysis of this hitherto unrecognized doctrine yields a host of useful insights.