II. CASE BY CASE DEVELOPMENT OF THE POLITICAL QUESTION DOCTRINE
The first case to discuss in detail the application of the political question doctrine was Luther v. Borden, 7 How. (48 U.S.) 1, 12 L. Ed. 581 (1849).
Luther brought a trespass action against Borden and others for breaking and entering Luther's house. Borden defended on the grounds that an insurrection to overthrow the government of Rhode Island was taking place, that martial law had been declared by the General Assembly, that Luther was aiding and abetting the insurrection and that the defendants were members of the local infantry ordered to arrest the plaintiff and if necessary to break and enter his dwelling. Luther's reply was based on the assertion that prior to the acts complained of, the government, under whose authority his house was broken into, had been displaced by the people of Rhode Island, and that Luther was acting in support of the new government. The form of the original charter government of Rhode Island had not been significantly changed since its inception in 1663. By 1840, a number of citizens led by Dorr were disenchanted with the existing form of government and called a convention, unauthorized by the legislature, to write a new constitution to be submitted to the people. After the votes were returned, the convention declared the new constitution to be adopted, and communicated the decision to the governor so that he might place it before the charter legislature. In addition, the convention ordered elections for various state posts, and the representatives thus elected organized a new government to supercede that established by the charter.
With this factual background, the Supreme Court was asked to decide which of the two Rhode Island governments was legitimate. This they refused to do. Rather, they examined the decisions of the Rhode Island Supreme Court and concluded that they were bound by that court's interpretation of the Rhode Island laws and constitution. And when confronted with the suggestion that they make their own determination based on the right of the people to a republican form of government, the Court answered that the Constitution reposes the protection of that right solely with the legislative and executive -- the political -- branches of the federal government.
The Court justified on a number of grounds its refusal to decide the question of legitimacy on the merits. First, there were no criteria by which a federal court could determine who should be eligible to vote on the question which government ought to be recognized. More importantly, the Court held that, by its terms, Article 4, Section 4 of the Constitution committed to Congress the decision whether a particular government is the established one in a State. Concluding its opinion, the Court stated:
"Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the State sovereignties, and of the legislative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums." 7 How. (48 U.S.) at 46-47, 12 L. Ed. 581.
The holding of Luther v. Borden that the Guarantee Clause presents a political question has been reaffirmed time after time by the Supreme Court.
Although not specifically dealing with the political question principle, the Prize Cases, 67 U.S. 635, 17 L. Ed. 459 (1863), relied upon by the plaintiffs, are instructive in tracing the development of the doctrine. In April, 1861, President Lincoln declared a blockade against the states making up the Confederacy, and shortly thereafter several ships were seized by federal vessels, taken to Northern ports, and claimed as prizes. The issues before the Supreme Court were whether the President had the power to declare the blockade, and if so, whether the property of residents of the blockaded states was "enemy" property. The Court began by stating the general rules that the President, as Commander-in-Chief, is the proper person to declare a blockade, and that a blockade is justified when a state of war exists de facto. The Court then noted it was factually beyond dispute that with the firing on Fort Sumter, a state of civil war did exist, and that it was the duty of the President to protect the Nation from invasion. Therefore, the President had the power to blockade Southern ports.
The dissent viewed the question differently and stated that without a formal declaration of war the President was powerless to act. One might conclude, then, that questions concerning the war-making powers of the President and Congress do not fall within the political question doctrine on the assumption that the majority must have considered these issues on the merits. Such a suggestion overlooks the fact, however, that the majority rested its holding on the existence of actual hostilities and not on a declaration of war in the constitutional sense. The position of the minority, that a federal court may properly examine on the merits the scope of the war-making powers of the political branches in other than a case of conflict between the actions taken by both branches, has simply never been the law. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952).
Shortly after the Civil War was terminated, the Court was called upon to enjoin the President from executing and carrying out the Reconstruction Acts on the ground that the legislation was unconstitutional. In Mississippi v. Johnson, 71 U.S. 475, 4 Wall 475, 18 L. Ed. 437 (1867), it refused to do so. The case can be read narrowly to suggest that because the actions of the President in enforcing Congressional enactments are discretionary and not merely ministerial, the President may not be enjoined from carrying out a particular law. A closer reading of the case, however, indicates that the reasons stated by the Court for its holding are analogous to those already developed in the political question field: the Constitution reposes execution of the laws in the President. Were the courts to interfere, a constitutional crises might ensue. This is so because if the President were enjoined, the courts would not possess the power to command obedience by the President, and if the President were to obey the injunction and Congress subsequently impeached him, the courts would be required to protect the President by enjoining the impeachment -- a "strange spectacle." Thus, the immunity of the President from such injunctions draws its essence from the separation of powers concept rather than from the technical distinction between discretionary and ministerial acts.
Later in the 19th century, the Supreme Court began to apply the developing political question doctrine to specific factual settings. In re Baiz, 135 U.S. 403, 10 S. Ct. 854, 34 L. Ed. 222 (1890), held that federal courts did not have the authority to review the refusal of the Department of State to issue immunity papers to the general consul of a foreign nation because the executive alone possessed the power.
Two years later the Court was confronted with a case in which importers protested the assessment of a duty on the basis that the legislation authorizing the tax as printed differed from that passed by the House and Senate. Field v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294 (1892). After noting that the enrolled act carried the signatures of the Speaker of the House, the President of the Senate, and the President of the United States and was in the custody of the Secretary of State, the Supreme Court held that the authenticity of the bill could not be attacked.
The next case of significance in particularizing the development of the political question doctrine is Oetjen v. Central Leather Co., 246 U.S. 297, 38 S. Ct. 309, 62 L. Ed. 726 (1918). In dispute was the ownership of a large cargo of hides that the plaintiff claimed as the assignee of Martinez & Co., an enterprise doing business in Torreon, Mexico, and to which the defendant asserted title based on a purchase from a Texas company.
Following the commencement of a revolution in Mexico in 1913, in which General Carranza eventually succeeded in ousting the Huerta regime, General Villa was placed in command of the northern Carranza forces. After capturing the city of Torreon, Villa proposed levying a military contribution on the citizens to support his army. Following negotiations, terms were reached. However, one Huerta follower had fled the city and failed to pay his assessment.
Villa confiscated the hides in payment and eventually sold them to the Texas company. The assignee of the individual from whom the hides were seized brought suit to regain them on the theory that the Villa assessment violated the terms of the Hague Convention.
The Supreme Court took judicial notice of the fact that the President had recognized the Carranza government de facto in 1915 and de jure in 1917, and that such recognition is retroactive. The Court refused to inquire beyond this act of the executive because
"The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative -- 'the political' -- departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Id. at 302, 38 S. Ct. at 311.
Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759 (1927), on the other hand, made clear that merely because the political process may in some way be implicated in the issues of a law suit, it does not follow that a federal court lacks jurisdiction because of the political question doctrine. As Justice Holmes stated, for a unanimous Court:
"The objection that the subject-matter of the suit is political is little more than a play upon words. Of course the petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years . . ." Id. at 540, 47 S. Ct. at 446.