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The political question doctrine

The political question doctrine is a judicial stance of non-interference when the question at hand is assigned by the Constitution exclusively to another branch of government.

An example of the application of the doctrine was in the case of Nixon v. United States. Federal judge Walter Nixon was impeached in 1991 after being convicted of perjury. He was impeached by the House and an investigation was done by a Senate Committee, and upon recommendation of that committee, the Senate voted to remove Nixon from office. Nixon sued saying that he had not been tried by the Senate as called for by the Constitution. The Supreme Court unanimously upheld Nixon’s impeachment and the majority said that the courts had no role in impeachment,

The Constitution gives the Senate the “sole power to try all impeachments,” exclusive language that was taken to exclude any intervention by the judiciary.  Impeachment is the only power associated with the word “sole” in the Constitution, but other exclusive powers are similarly implied, such as the power for each House of Congress to determine the qualifications and election of its members. Likewise the judicial power is vested in “one supreme Court” and inferior courts that Congress might establish.

I become uneasy when the political question doctrine is applied to a situation where one branch of government is violating the Constitution and the assignment of power to that branch is not explicitly exclusive. Here’s a hypothetical:

Donald Trump wins the majority of electoral votes in the upcoming presidential election, but a super majority in Congress think he would be a disaster for the country and so he is not qualified to be president, and declares the vice president elect the acting president. That’s a constitutional crisis if ever there was one. I would want the courts to weigh in on that question and legitimize the actions those who would not allow such a person to assume office.

The checks and balances that keep one branch of government from going rogue need the judiciary to step in sometimes.

So what about presidential eligibility? The Constitution’s 20th Amendment has language that can be argued to assign the question of presidential eligibility to Congress in joint session:

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

I go with those who say that the 20th Amendment applies in a narrow window of time after the presidential election, and that it does not exclude government from reviewing candidate eligibility beforehand.

One citation of interest is: “a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies.” See Bullock v. Carter, 405 U.S. 134, 145 (1972).

Another interesting citation is:

…nothing in the Twentieth Amendment states or implies that Congress has the exclusive authority to pass on the eligibility of candidates for president. The amendment merely grants Congress the authority to determine how to proceed if neither the president elect nor the vice president elect is qualified to hold office … Lindsay v. Bowen, 9th Cir. 2014.

Following is a work in progress listing court decisions that address the political question doctrine as it applies to presidential eligibility.

Court Case Judge Political Question?
Commonwealth Court of Pennsylvania Elliott v. Cruz Dan Pellegrini No
US District Court for the Southern District of Mississippi Taitz v. Mississippi Democrat Party Henry T. Wingate Yes
US District Court for the Eastern District of Virginia Rudy v. The United States Patent and Trademark Office et al Leonie M. Brinkema Yes
US Court of Appeals for the Ninth Circuit Peta Lindsay v. Debra Bowen Chief Judge Kozinski No
US District Court for the Eastern District of California Grinols v Electoral College Morrison C. England Yes
Supreme Court of the State of New York Strunk v. NY State Board of Elections Arthur Schack Yes
US District Court for the Northern District of California Robinson v. Bowen William Alsup Yes
Circuit Court of the Second Judicial Circuit in and for Leon County, Florida Voeltz v. Obama (Voeltz III) Kevin J. Carroll Yes
Commonwealth Court of Pennsylvania Schneller v. Corbett Per Curiam Yes

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5 Responses to The political question doctrine

  1. avatar
    CRJ March 22, 2016 at 7:54 am #

    Really enjoyed this Article Doc – One might add respectfully The Decisions of dismissing Cases based on [no Standing] is also a tenant agreement that Presidential Candidates do have Standing in the Judicial Branch and it’s recognized throughout multiple Regions and Courts.

    BETTER LATE THEN NEVER President Bill Clinton alludes to “Prosecuting the Past” in reference to #Obama ‘s last 8 years that really seems to be a reference to #Obama’s Ineligibility financed in Cover-Up of 10 Trillion Dollars which is the most “well financed” yet dismal producing hedge in US History. This is Obama’s “Aweful Legacy!”

    Indeed, President Clinton knows Cody Robert Judy has been the only TriPartisan Force for Democrats, Republicans, and Independence standing up, as he referenced, for our Founders Principles in the U.S. Constitution.

    Former Secretary Hillary Clinton wanted no part in Defending the U.S. Constitution’s Article II Principles of Qualification for the Office of President as she did NOT protest either McCain’s or Obama’s ineligibility, not has she stood up during this whole Campaign of 2016 and said a single word from her Campaign Pulpit about Sen. Ted Cruz’s ineligibility in defense of the Constitution’s Highest Office.

    It’s as if Mrs. #Clinton2016 chokes on actually defending the Constitution? What kind of Leader says, “I will defend your Rights” but will not say a Single Word about Radical Right Ted Cruz’s attempt to Usurp the Oval Office? What kind of Leader cannot speak up and speak out against this Fleecing of Our American Values and Principles?

    Why is Madam SECRETARY so cowardly about Our Unique American Heritage? I’ll tell you Why? It’s because Hillary Clinton has been PAID much more money by FOREIGN INTEREST for her speaking engagements in the presumption of selling our State Secrets while in Office of the Secretary of State, unaccountable to anyone or any Law but the eyes of her own self.

    This is What # #EmailGate is all about. Avoiding accountability to the U.S. Constitution. It’s interesting when Politicians really want to Score some points they talk and bring up our Founders Promise and Intentions of a Unique American Nation under our Constitution that provided opportunity through a genius Checks and Balances three stool Government Process, but their actions are far from it as HillaryClinton’s has time and time again betrayed.

    The Check and Balance on the Office of President from the JUDICIAL BRANCH to the EXECUTIVE BRANCH is the Civil Trial Court Process and that can ONLY be excercised by a Candidate Running in the same office inferring damages. It’s the Duty of Candidates Running to Police fellow Candidates when their actions infringe upon the Principles of the Constitution. Other Citizens are not given that Responsibility.

    Mrs. #Clinton2016 on her own accord forsook that Duty and Responsibility in 2008 failing to File Ballot Challenges or a Civil Case against Obama within her own Democratic Party. This lack of Courage demonstrated she was not fit for the Office of President.

    We need a Person who is not ashamed of America or America’s Principles and Values. If we elect Embarrassments who are Embarrassments to the Law God saw fit to Establish in the United States on Record of and as Divine Providence how can we expect the Blessing or Rewards that are Open and not Embarrassing?

    If the American People want a Leader they must Choose someone who has led with Courage not Shame. Choose a Leader who has defended them to the Core not just the skin of the Apple 🍎 which is shallow and hallow.

    #Americans it’s Time to Stand. To be seen Standing for Truth. Taking a Stand is not always easy especially against the evils of our day like the intolerance of those who seek to snuff out Multiple Religions Respect, Free Speech, Free Markets, Equal and Good Trade, Mutual Gender Respect, and Defend a plot of ground with Borders in which these our Laws can Reign Supreme!

    Sincerely it’s been my Honor to Stand for these in your defense and the Future of a Free and Liberating United States of America.

    May God BLESS You with the Same Wonderful Spirit I have found as such beautiful Love in my Heart necessary for a couragious stand against all Odds. Love is the Power of Courage and Defense.
    #UtahCaucus #ArizonaPrimary #CRJ2016 #Utpol #Democrats
    Cody Robert Judy

    https://m.youtube.com/watch?v=o9bsP2As3uc&feature=youtu.be

    https://m.facebook.com/story.php?story_fbid=1144611192240329&id=510896692278452

  2. avatar
    Rickey March 22, 2016 at 11:00 am #

    More gibberish from CRJ.

    I wonder how many delegates CRJ is going to win in his home state caucus tonight. Can CRJ spell zero?

  3. avatar
    bob March 22, 2016 at 3:49 pm #

    CRJ:
    Really enjoyed this Article Doc – One might add respectfully The Decisions of dismissing Cases based on [no Standing] is also a tenant agreement that Presidential Candidates do have Standing in the Judicial Branch and it’s recognized throughout multiple Regions and Courts.

    No actual candidate has had an election challenge dismissed due to lack of standing.

    Indeed, President Clinton knows Cody Robert Judy has been the only TriPartisan Force for Democrats, Republicans, and Independence standing up, as he referenced, for our Founders Principles in the U.S. Constitution.

    I’m sure that President Obama — like almost everyone — has never heard of Judy.

    Former Secretary Hillary Clinton wanted no part in Defending the U.S. Constitution’s Article II Principles of Qualification for the Office of President as she did NOT protest either McCain’s or Obama’s ineligibility, not has she stood up during this whole Campaign of 2016 and said a single word from her Campaign Pulpit about Sen. Ted Cruz’s ineligibility in defense of the Constitution’s Highest Office.

    Because Clinton isn’t a birther and doesn’t share their delusions; duh.

    It’s the Duty of Candidates Running to Police fellow Candidates when their actions infringe upon the Principles of the Constitution.

    Clinton’s competition are all natural-born citizens; duh.

    I’m soooooo glad that Judy took time out from his busy schedule of caucus-day campaigning to again remind us that he is completely ignorant and delusional.

  4. avatar
    bob March 22, 2016 at 3:53 pm #

    The Lindsay is more significant than the others: It was decided by three judges (not one), and it is a published decision by the 9th Circuit — it is binding on that circuit (and the federal courts in that circuit).

    In other news, the Supreme Court of Pennsylvania has ordered expedited briefing in the review of Pellegrini’s decision.

  5. avatar
    Rickey March 23, 2016 at 11:42 am #

    bob:

    I’m soooooo glad that Judy took time out from his busy schedule of caucus-day campaigning to again remind us that he is completely ignorant and delusional.

    The results from Utah are in.

    Sanders apparently won 19 delegates and Clinton won 10. There were 301 votes (out of 65,000) for “uncommitted.” I could make a joke about “uncommitted” but I’ll pass.