Doctrine of Political Questions

The Doctrine of Political Questions

It is not within the province of the courts to inquire into the policy underlying action taken by the “political departments”- Congress and the President-in the exercise of their conceded powers. This commonplace maxim is, however, sometimes given an enlarged application, so as to embrace questions as to the existence of facts and even questions of law, that the Court would normally regard as falling within its jurisdiction. Such questions are termed “political questions,” and are especially common in the field of foreign relations. The leading case is Foster v. Neilson,1 where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, and in which there was also raised the question whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States.

More about Doctrine of Political Questions

Chief Justice Marshall's opinion for the Court held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He wrote: “If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature.” 2

Doctrine of Political Questions: Developments

The doctrine thus clearly stated is further exemplified, with particular reference to presidential action, by Williams v. Suffolk Ins. Co.3 In this case the underwriters of a vessel which had been confiscated by the Argentine Government for catching seals off the Falkland Islands, contrary to that Government's orders, sought to escape liability by showing that the Argentinian Government was the sovereign over these islands and that, accordingly, the vessel had been condemned for willful disregard of legitimate authority. The Court decided against the company on the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. “[C]an there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the Union.”

Other Aspects

“If this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one of these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character.” 4 Thus, the right to determine the boundaries of the country is a political function,5 as is also the right to determine what country is sovereign of a particular region,6 to determine whether a community is entitled under international law to be considered a belligerent or an independent state,7 to determine whether the other party has duly ratified a treaty,8 to determine who is the de jure or de facto ruler of a country,9 to determine whether a particular person is a duly accredited diplomatic agent to the United States,10 to determine how long a military occupation shall continue in fulfillment of the terms of a treaty,11 to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent.12

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References

This text about Doctrine of Political Questions is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] 27 U.S. (2 Pet.) 253 (1829).

[Footnote 2] 27 U.S. at 309.

[Footnote 3] 38 U.S. (13 Pet.) 415 (1839).

[Footnote 4] 38 U.S. at 420.

[Footnote 5] Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

[Footnote 6] Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839).

[Footnote 7] United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818).

[Footnote 8] Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853).

[Footnote 9] Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918).

[Footnote 10] In re Baiz, 135 U.S. 403 (1890).

[Footnote 11] Neely v. Henkel, 180 U.S. 109 (1901).

[Footnote 12] Terlinden v. Ames, 184 U.S. 270 (1902); Charlton v. Kelly, 229 U.S. 447 (1913).