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.
|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|