Marbury v. Madison and Political Question Doctrine

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Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The political question doctrine has its origins in the foundational case for judicial review, Marbury v. Madison.1 Marbury involved a suit to force Secretary of State James Madison to deliver a signed commission to a newly appointed official, William Marbury.2 The commission had been signed by the previous administration but not delivered; following the change in presidential administrations, Madison refused to deliver it.3 Among the issues presented in that case, the Court examined whether it even had the authority to adjudicate the legality of Madison’s refusal to deliver the commission.4 That question, according to Chief Justice John Marshall’s opinion for the Court, turned on “the nature” of the government action in question. As the Court explained, “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” 5 Thus, if the act of an official is one in which the “executive possesses a constitutional or legal discretion, nothing can be more perfectly clear that their acts are only politically examinable.” 6 However, if a “specific duty is assigned by law, and individual rights depend on the performance of that duty,” then injured individuals have a right to resort to the courts.7 According to the Chief Justice, “[t]he power of nominating to the senate, and the power of appointing the person nominated” were political questions, and fundamentally unreviewable.8 By contrast, “if, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority.” 9 Ultimately, the Court concluded that the question of whether to deliver Marbury’s commission was not a political one, as Marbury had a legal right in the appointment.10

Although the Court in Marbury opined that it could not decide “[q]uestions[ ] in their nature political,” that case did not articulate the political question doctrine as the concept is understood today—a rule that deprives the federal courts of jurisdiction to hear certain cases, including cases involving claims of constitutional rights.11 Rather, Marbury indicated only that some decisions are inherently discretionary and are therefore immune from judicial scrutiny because there is no enforceable legal right at stake.

In the years following Marbury, the Court invoked the political question doctrine when deferring to the factual or policy determinations of the other branches in certain categories of cases.12 For example, the Court held in the 1827 case Martin v. Mott,13 that the legality of the President’s decision to call out the militia in response to a supposed national emergency was beyond judicial scrutiny.14 Similarly, in Williams v. Suffolk Insurance Co.,15 an 1839 case raising the question of who ruled the Falkland Islands, the Court concluded that the Executive had the final word on questions of foreign sovereignty.16 The Court also concluded that this deference in the realm of foreign affairs applied to the President’s authority to enter into treaties.17 In several cases from the nineteenth and early twentieth centuries, the Court also expressed a willingness to defer to Congress with respect to certain legal questions. For example, the Court concluded that the Judiciary was required to defer absolutely to congressional recognition of Indian tribes,18 as well as congressional determinations of when wars begin and when they conclude.19

1: 5 U.S. (1 Cranch) 137, 165–66 (1803).
2: Id. at 153–57.
3: Id.
4: Id. at 165.
5: Id. at 170.
6: Id. at 166.
7: Id.
8: Id. at 167. See also Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 112–13 (1948) ( “[A]dministrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship . . . [t]o revise or review an administrative decision, which has only the force of a recommendation . . . would be to render an advisory opinion.” ).
9: Marbury, 5 U.S. (1 Cranch) at 167.
10: Id.
11: See ArtIII.S2.C1.9.5 Modern Political Question Doctrine, ArtIII.S2.C1.9.6 Foreign Affairs as a Political Question, and ArtIII.S2.C1.9.7 Congressional Governance as a Political Question.
12: Tara Leigh Grove, The Lost History of the Political Question Doctrine, 90 N.Y.U. L. Rev. 1908, 1911–12 (2015) (arguing that nineteenth century “political-question doctrine” was simply an application of deference by the judicial branch to the factual determinations made by the other branches).
13: 25 U.S. (12 Wheat.) 19 (1827).
14: Id. at 32–33.
15: 38 U.S. (13 Pet.) 415 (1839).
16: Id. at 420 ( “[W]hen 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.” ). See also Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (holding that courts could not reexamine the validity of a levy by a Mexican commanding general during a Mexican civil war); Jones v. United States, 137 U.S. 202, 212 (1890) ( “Who is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political[ ] question, the determination of which by the legislative and executive departments of any government conclusively binds the judges.” ); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 308–09 (1829) ( “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.” ).
17: Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1854) (holding that the duty of courts with respect to a treaty is “to interpret it and administer it according to its terms,” not to evaluate whether “the person who ratified the treaty on behalf of a foreign nation had the power” to enter it). See also Clark v. Allen, 331 U.S. 503, 514 (1947) (holding that the question of whether a treaty survived the war with Germany is “essentially a political question” and “[w]e find no evidence that the political departments have considered the collapse and surrender of Germany as putting an end” to treaty obligations); Terlinden v. Ames, 184 U.S. 270, 289–90 (1902) (concluding that the validity of extradition treaty between Kingdom of Prussia and United States was a political question, observing that both governments acted as though the treaty was still valid and the Court had no authority to say otherwise).
18: United States v. Sandoval, 231 U.S. 28, 45–46 (1913) ( “Taking these decisions together, it may be taken as the settled doctrine of this court that Congress, in pursuance of the long-established policy of the government, has a right to determine for itself when the guardianship which has been maintained over the Indian shall cease. It is for that body, and not the courts, to determine when the true interests of the Indian require his release from such condition of tutelage.” ); United States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1866) ( “In reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same.” ).
19: Commercial Tr. Co. v. Miller, 262 U.S. 51, 57 (1923). See also The Protector, 79 U.S. (12 Wall.) 700, 701 02 (1871) ( “Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, to say on what precise day it began or terminated. It is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates.” ).