Political Question Doctrine – Separation of Powers under US Constitution

Political Question Doctrine – Separation of Powers under US Constitution

Baker v. Carr

Six elements determine the political question.

  1. In the text of Constitution:  textually demonstratble constitutional commitment of the issue to a coordinate political department
  2. Not discoverable: a lack of judicially discoverable and manageable stgandards
  3. policy premised: the impossibility of deciding without and initial policy determination beyond the discretion of the court
  4. disrespect to other branches: the impossibility for a court to independently resolve the case “without expressing lack of respect” for a coordinate branch of the government
  5. Challenging Policy decision already made: An “unusual need for unquestioning adherence to a political decision already made”
  6. Embarrassment: The potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Three categories: 

(a) inter-branch homony: embarrasement and disrespect: 3, 4, 5, 6

(b) text in constitution: 1

(d) capabilty of court: lack of judcially discoverable and manageable standards: 2

Steel Seizure Case

  • Justice black’s majority opinion: explicitly granted in the constitution OR if the congress has authorized the power to president
  • Justice Jackson’s concurrence:
    • Determine if the congress and president is agree, disagree or the congress is silent
    • If in agreement, then president can exercise all inherent power plus power authorized by congress.
    • If disagree, then president can only exercise inherent power in part that do not overlap congress’s power
    • If congress is silent: president can exercise his inherent power + zone of twilight (overlap part that both congress and president have) – case by case

United States v. Curtiss-Wright 

Rule: President has power to criminalize sale of guns to Bolivia by executive order because it is in his inherent power of foreign affairs.


  • Unlike the domestic issues that are enumverated in the Constitution, the States have never possessed powers over foreign affairs.  Such power is directly authorized by people to the federal government.
  • The President is the sole organ of the federal government in the field of international relations. Marshall: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”
  • while the president shall excercise his power within the parameters of Constitution, his power in international affairs is broad
  •  In order to effectively maintain international relations, congressional legislation concerning foreign affairs must accord the President a degree of discretion

Dames & Moore v. Regan

Rule: The President has authority to settle claims through executive orders where the settlement of claims is necessary for the resolution of a major policy dispute between the United States and another country and where Congress acquiesces to the President’s action.