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(For Frank ‘Austin’ England III) 




An issue that the federal courts refuse to decide because it properly belongs to the decision-making authority of elected officials.


Political questions include such areas as the conduct of foreign policy, the ratification of constitutional amendments, and the organization of each state’s government as defined in its own constitution. The rule preventing federal courts from deciding such cases is called the political question doctrine. Its purpose is to distinguish the role of the federal judiciary from those of the legislature and the executive, preventing the former from encroaching on either of the latter. Under the rule, courts may choose to dismiss cases even if they have jurisdiction over them. However, the rule has no precise formulation, and its development since the 1960s has sometimes been unpredictable.

The Supreme Court originated the idea of political questions in the early 1800s during its formative era. As with other judicial doctrines created by the Court, the rule is interpretive and self-imposed. It is neither a result of legislation nor a part of the U.S. Constitution, although it appears to emanate from the Constitution’s Separation of Powers. The Court created the political question doctrine as part of the broader concept of justiciability—the issue of whether a matter is appropriate for court review. Appropriate matters are called Justiciable controversies and may proceed to court. Political questions are not regarded as appropriate matters; they are not justiciable and, generally, will be dismissed. The political question doctrine will not be applied to every matter that arouses fierce public debate, as seen in the Court’s rulings on Abortion and Affirmative Action. As the history of the Supreme Court shows, the determination of whether an issue is justiciable is at its own discretion.

Chief Justice John Marshall first used the term political question in 1803 at a time when the Court sought to tread delicately between warring factions of politicians in Washington. Not until 1849 was the idea elaborated, in response to a crisis in the state of Rhode Island known as the Dorr Rebellion: a political uprising had resulted in the passage of two separate state constitutions, the declaration of Martial Law, and the promise of military intervention by President John Tyler. The Supreme Court was asked to settle critical constitutional questions about the nature of republican government but refused ( Luther v. Borden, 48 U.S. [7 How.] 1, 40; 12 L. Ed. 581 [1849]). Chief Justice Roger Taney instead delivered the first articulation of the doctrine: federal courts should leave certain constitutional questions to the legislative and executive branches in any matter that is “a political question to be settled by the political power.”

From the mid-nineteenth century until the 1960s, the political question doctrine changed very little. Then the Supreme Court began to narrow it: where previously a broad rule applied,  now matters that would have been rejected as political questions became justiciable controversies. In a landmark case in 1962, the Court intervened to allow a challenge to the way in which the Tennessee legislature apportioned its voting districts ( Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663). Again, in 1969, the Court took up a matter that previously would have been dismissed. This was its decision that the House of Representatives could not exclude a duly elected member who met all constitutional qualifications, despite the provision in Article I of the Constitution that gives both houses of Congress the power to judge qualifications ( Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491).

These cases cast doubt on the future of the doctrine. In 1974, the Court added further uncertainty when it ruled against President Richard M. Nixon’s claim of Executive Privilege in the Watergate scandal ( United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039). It is well settled that the federal courts cannot supervise or control the decisions of the president or other executive officials. President Nixon had relied on this fact when he defied congressional subpoenas asking him to release tapes and documents made in the White House. The Court chose, however, not to adhere rigidly to the rule by holding that the demands of a fair trial and criminal justice outweighed the president’s claim.

Political Questions

It may be that the Court will refuse to adjudicate a case assuredly within its jurisdiction, presented by parties with standing in which adverseness and ripeness will exist, a case in other words presenting all the qualifications we have considered making it a justiciable controversy. The “label” for such a case is that it presents a “political question.” Although the Court has referred to the political question doctrine as “one of the rules basic to the federal system and this Court’s appropriate place within that structure, a commentator has remarked that “[i]t is, measured by any of the normal responsibilities of a phrase of definition, one of the least satisfactory terms known to the law. The origin, scope, and purpose of the concept have eluded all attempts at precise statements. That the concept of political questions may be “more amenable to description by infinite itemization than by generalization is generally true, although the Court’s development of rationale in Baker v. Carr has changed this fact radically. The doctrine may be approached in two ways, by itemization of the kinds of questions that have been labeled political and by isolation of the factors that have led to the labeling.

Rescue Army v. Municipal Court fo Los Angeles, 331 U.S. 549, 570(1947); cf.Baker v. Carr, (1962) (Justice Frankfurter dissenting). The most successful effort at conceptualization of the doctrine is Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517 (1966). See Hart & Wechsler, supra at 270-294.

Origins and Development.—In Marbury v. Madison, Chief Justice Marshall stated: “The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.”

But the doctrine was asserted even earlier as the Court in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796)  refused to pass on the question whether a treaty had been broken. And in Martin v. Mott, 25 U.S. (12 Wheat.) 19 the Court held that the President acting under congressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But it was in Luther v. Borden that the concept was first enunciated as a doctrine separate from considerations of interference with executive functions. This case presented the question of the claims of two competing factions to be the only lawful government of Rhode Island during a period of unrest in 1842 Chief Justice Taney began by saying that the answer was primarily a matter of state law that had been decided in favor of one faction by the state courts.

In Decatur v. Paulding,  39 U.S. (14 Pet.) 497 (1840), the Court, refusing an effort by mandamus to compel the Secretary of the Navy to pay a pension, said: “The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them.” It therefore follows that mandamus will lie against an executive official only to compel the performance of a ministerial duty, which admits of no discretion, and may not be invoked to control executive or political duties which admit of discretion. See Georgia v. Stanton, 73 U.S.(6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866); Kendall v. United States ex Rel. Stokes, 37 U.S. (12 Pet.) 524 (1838).

Insofar as the Federal Constitution had anything to say on the subject, the Chief Justice continued, that was embodied in the clause empowering the United States to guarantee to every State a republican form of government, and this clause committed determination of the issue to the political branches of the Federal Government. “Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must neccessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. Here, the contest had not proceeded to a point where Congress had made a decision, “[y]et the right to decide is placed there, and not in the courts.”

Moreover, in effectuating the provision in the same clause that the United States should protect them against domestic violence, Congress had vested discretion in the President to use troops to protect a state government upon the application of the legislature or the governor. Before he could act upon the application of a legislature or a governor, the President “must determine what body of men constitute the legislature, and who is the governor … .” No court could review the President’s exercise of discretion in this respect; no court could recognize as legitimate a group vying against the group recognized by the President as the lawful government.  Although the President had not actually called out the militia in Rhode Island, he had pledged support to one of the competing governments, and this pledge of military assistance if it were needed had in fact led to the capitulation of the other faction, thus making an effectual and authoritative determination not reviewable by the Court. 

The Doctrine Before Baker v. Carr.—Over the years, the political question doctrine has been applied to preclude adjudication of a variety of issues. Certain factors appear more or less consistently through most but not all of these cases, and it is perhaps best to indicate the cases and issues deemed political before attempting to isolate these factors.

(1) By far the most consistent application of the doctrine has been in cases in which litigants asserted claims under the republican form of government clause, whether the attack was on the government of the State itself or on some manner in which it had acted, but there have been cases in which the Court has reached the merits.

(2) Although there is language in the cases that would if applied make all questions touching on foreign affairs and foreign policy political, whether the courts have adjudicated a dispute in this area has often depended on the context in which it arises. Thus, the determination by the President whether to recognize the government of a foreign state or who is the de jure or de factoruler of a foreign state is conclusive on the courts, but in the absence of a definitive executive action the courts will review the record to determine whether the United States has accorded a sufficient degree of recognition to allow the courts to take judicial notice of the existence of the state. Moreover, the courts have often determined for themselves what effect, if any, should be accorded the acts of foreign powers, recognized or unrecognized. Similarly, the Court when dealing with treaties and the treaty power has treated as political questions whether the foreign party had constitutional authority to assume a particular obligation and whether a treaty has lapsed because of the foreign state’s loss of independence or because of changes in the territorial sovereignty of the foreign state, but the Court will not only interpret the domestic effects of treaties, it will at times interpret the effects bearing on international matters. The Court has deferred to the President and Congress with regard to the existence of a state of war and the dates of the beginning and ending and of states of belligerency between foreign powers, but the deference has sometimes been forced.

As it was on the established government of Rhode Island in Luther v. Borden, 48 U.S. (7 How.) 1 (1849).   See also Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Taylor and Marshall v. Beckham, 178 U.S. 548 (1900).
Pacific States Tel. & Tel. v. Oregon, 223 U.S. 118 (1912); Kiernan v. Portland, 223 U.S. 151 (1912); Marshall v. Dye, 231 U.S. 250 (1913)(state constitutional amendment procedure); O’Neill v. Leamer, 239 U.S. 244 (1915)(delegation to court to form drainage districts); Davis v. Hildebrant, 241 U.S. 565 (1916)(submission of legislation to referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917)(workmen’s compensation); Ohio v. Akron Metropolitan Part District, 281 U.S. 74 (1930)(concurrence of all but one justice of state high court required to invalidate statute); Highland Farms Dairy, Inc. v. Agnew 300 U.S. 608 (1937)(delegation of legislative powers).

All the cases, however, predate the application of the doctrine in Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912).   See Attorney General of the State of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 239 (1905)(legislative creation and alteration of school districts “compatible” with a republican form of government); Forsyth v. Hammond, 166 U.S. 506, 519 (1897)(delegation of power to court to determine municipal boundaries does not infringe republican form of government); Minor v. Happersett, 88 U.S.(21 Wall.)164, 175-176 (1875)(denial of suffrage to women no violation of republican form of government).
Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); C. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)

United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818); Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852)

Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918); Ex Parte Hitz, 111 U.S. 766 (1884)

(3) Ordinarily, the Court will not look behind the fact of certification that the standards requisite for the enactment of legislation or ratification of a constitutional amendment have in fact been met, although it will interpret the Constitution to determine what the basic standards are, and it will decide certain questions if the political branches are in disagreement.

United States v. The Three Friends, 166 U.S. 1 (1897); In Re Baiz, 135 U.S. 403 (1890); Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)

(Blog Masters Note: This document starts off in Austin’s normal style and ends in his style.  But, from “Political Questions” all cases, footnotes (that would hard to copy and place) and further cases on the subject are online.   So I will continue with the part that is strickly Austin.  Do go to the website and study further cases that are important.)

The Justiciability of Doctrines

Case or Controversy

Article III states that the judicial power of the federal courts extends only to cases and controversies which arise under the Constitution, federal laws of the United States and its treaties. This remains the overlying principle by which the courts determine whether or not an issue is justiciable, and has led to the establishment of the justiciability doctrines. These doctrines are used to determine whether a case or controversy actually exists, and if one does then the issues are considered justiciable.

Advisory Opinions

Since Article III mandates that the judiciary only has power over cases and controversies, the Supreme Court has held that where a case or controversy does not exist, the judiciary is not to issue any advisory opinion regarding the matter. This prohibition against advisory opinions helps to serve separation of powers: by not issuing advisory opinions, the federal judiciary is keeping the courts out of the political process, and leaving that process solely to the discretion of the legislative and executive branches. Additionally, by not issuing advisory opinions, the judiciary is conserving its resources for cases that actually need adjudication.

Three basic requirements must be met so that the judiciary may hear a case and issue an opinion that would not be advisory. First, the case needs to present an actual dispute, not a hypothetical legal question. By requiring an actual dispute, the judiciary is ensuring that any decision issued in the case is the final one because it was based upon concrete facts and not upon some fanciful situation which may not have presented a complete picture of the controversy. The second requirement is that the dispute is between adverse litigants. Adversariness is required to ensure that the case brought before the courts truly involves a controversy that is in need of a resolution; if the opponents are not true adversaries, then any issued opinion would be advisory. The last requirement is that if a decision is issued in favor of the claimant, there is a substantial likelihood that it would have some effect. In any situation where the opposing party could ignore the ruling, then the opinion lacks finality and is in effect advisory. Declaratory judgments are justiciable as long as they present a real controversy. Declaratory judgments that meet these criteria are themselves justiciable.   Aetna Life Ins.Co. v. Haworth,  300 U.S. 227 (1937).

Mootness and Ripeness

Mootness and Ripeness both deal with the existence of an actual controversy; mootness with whether the controversy has terminated, and ripeness with whether it is ready for adjudication. A case will be declared moot if the defendant dies during a criminal trial, if the plaintiff dies during a civil action and the action does not survive the death (usually by statute), and if the parties settle between themselves before a final judgement is entered. In these situations the issues are no longer redressable. Exceptions do exist to the mootness doctrine which allow a case to be heard: where secondary injuries exist that may be addressed by the court; cases which involve a wrong that is capable of repetition and likely to evade review; where an illegal practice has been terminated but it could be resumed at any time; and in a properly certified class action suit.

Cases are declared not ripe because the injuries are either too speculative or they may never occur. The rationale behind the ripeness doctrine is that a court should not issue premature judgements based on abstract disagreements.  Abbott Laboratories v. Gardner,  387 u.s. 136 (1967). Ripeness typically arises when preenforcement review of a statute is sought, at which point to considerations are examined, and both must be present in order for an issue to be ripe. First, the plaintiff must show that a hardship is likely to be suffered in the absence of a judgement. This hardship could be caused by the law as it will eventually be applied, by collateral injuries, or because compliance with the law causes the hardship, and the only other choice is to break the law with the resulting consequences of being prosecuted. The second consideration is whether the issues are fit for a judicial decision. An issue that specific facts would assist in the judicail consideration will be found not ripe, while an issue is ripe when it is mostly a question of law, one which does not depend on context.


A determination that a person lacks standing means that person is not the proper party to bring the issue before the court for adjudication. The Standing Doctrine is viewed as a tool that promotes both the Separation of Power and judicial efficiency. Separation of Power is achieved through limiting the issues the judiciary hears, thus limiting review of the other branches of government. The limiting of cases before the courts promotes judicial efficiency, and this limiting also improves the decision-making ability of the judiciary through ensuring a specific controversy and that an advocate with a stake in the outcome is present to pursue the matter.

Four requirements must be met before a party will be granted standing in the federal judiciary, all of which must be met. The first three requirements are based upon Article III as Constitutional barriers to standing, and the last is an exercise of judicial restraint which may be overridden by Congressional statute.

The first requirement is that the parties must be adversaries. This is shown through the plaintiff having suffered or imminently likely to suffer a distinct and palpable injury. A mere interest in the problem is insufficient to establish standing. Therefore, the complaint must specifically allege that the plaintiff has suffered or is likely to suffer a distinct injury. The injury may even be one of aesthetic concerns, so long as it is personally suffered and is legally cognizable.   United States v. SCRAP, 412 U.S. 669 (1973). Additionally, a plaintiff seeking declaratory or injunctive relief must show a likelihood of injury in the future.   Los Angeles v. Lyons, 461 U.S. 95 (1983). Injuries which are sufficient to satisfy this requirement have generally been found to be any injury based on the common law and injuries based on a violation of the Constitution. Congress may create adversariness through statute, but it cannot create standing so that the public in general satisfies the statutory requirement.   Lujan v. Defenders of Wildlife,  112 S. Ct. 2130 (1992). Along this same line of reasoning, the Court will not permit an individual to sue the government on the basis of being a taxpayer or forcing the government to comply with the law.

The second and third requirements are that the named defendant(s) be the causation of the injuries and that the injury is redressable through the court. The Supreme Court has declared that these are separate inquiries, but they are very often examined at the same time. The plaintiff must show that the injury is fairly traceable to the defendant through a causal nexus linking the action of the defendant with the injury. The link must usually be a direct one, without the intervention of a third party. Where there is the intervention of a third party, the court may find that there was no causation, or that the injury is not redressable. In examining redressability, the court looks to the remedies sought in the pleadings and examines those for the likely affect they would have on the injury. When the injury depends on the actions of a third party, a court order will not affect that party, and the injury cannot be redressed. However, an injury caused by the defendant can be directly compensated for by the court.

See below for a detailed description of the judicial restraint requirement the courts use to find an issue non-justiciable.

Political Question

An issue, even a Constitutional one, which the Court feels is best resolved by one of the other branches of government may denied judicial review under the Political Question Doctrine. These issues are generally political in nature, and the court feels that the political system of accountability is the best mechanism to resolve the issues, as opposed to a mandate from the courts. Often, these issues are either given wholly to another branch of government in the Constitution, or there is a lack of judicially manageable standards for resolving it, or for a number of other reasons.  See Baker v. Carr, 396 U.S. 186, 217 (1962). These principals have been applied in such areas as the republican form of government clause in Article IV, §4, foreign relations, and Congress’ control of its own internal processes.

Judicial Restraint

Judicial restraint has two aspects to its nature. The first is the use of discretion in granting certiorari, and the second is a set of prudential rules used to deny a party standing in a particular case. Currently, the Supreme Court has the power to deny certiorari in any case. Congress, however, has the power under Article III to require Supreme Court review for any issue.

The prudential restraint rules focus on whether the plaintiff’s own rights are being asserted, or whether someone else’s rights are being asserted. There is no general third party standing, except in cases of the 1st Amendment and where a special relationship exists between the injured party and the party asserting the right. The special relationships which are permitted to exert third party standing are very limited. A close relationship is required between the third party and the right being asserted, such as an association which is closely tied to the claimed right or a party which has a zone of interest encompassing the right. Congress may also change any of these rules since they are not based within the Constitution.

So the message clearly is: “Come out from her and be ye separate . . .

Babylon is the World System…… There is the Kingdom of God………..being the Kingdom of Light……..

And there is the Kingdom of Darkness…….or the corrupt and bloody Kingdom of this World…..

Isaiah 6:9……..And he said…….Go, and tell this people, Hear Ye……indeed, but understand not…… and see ye, Indeed…..but perceive not…..

10…….Make the heart of this people fat….. and make their ears heavy….and shut their eyes….. lest they see….with their eyes….and hear with their ears….and understand with their heart……and convert, and be healed…..

Notice this……11……..Then, said I………Lord, How Long? And he answered……Until the cities be wasted without inhabitant….. and the houses without Man……. and the Land be Utterly Desolate,

12……And the Lord have removed men far away…….. and there be a great forsaking in the midst of the land…….

13……BUT…..YET IN IT……SHALL BE A…..TENTH…. and it shall return….and shall be eaten….. as a teil tree, and as an oak…..whose….substance is in them……when they cast their leaves: so, the Holy Seed……shall be the substance thereof……

God is calling those of us who have the eyes and ears to come out of Babylon……..

Come out from her……. and be ye separate…… The calling out is in our hearts……minds……

and spirit…..the new Birth… Having our minds renewed by the word…… and our spirits cleansed from evil……

Ezra 9:2b…..So that the holy seed have….mingled themselves with the people of those lands…..

Yea, the hand of the princes and rulers hath been…..chief in…..This Trespass……

II Corin.6:14…….Be ye not unequally yoked together with unbelievers….. for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness?

15……And…what concord hath Christ with Belial? or what part hath he that believeth with an infidel?

16…..And what agreement hath the TEMPLE OF GOD…..with idols?


17…….Wherefore….Come Out from among them….and be ye separate… saith the Lord…..and touch not the unclean thing…..and I will receive you…

18……And……… Will be a Father unto you…. and ye shall be my Sons and Daughters….saith the Lord Almighty…..

7:1…..HAVING THEREFORE THESE PROMISES…..DEARLY BELOVED….. let us cleanse ourselves from all filthiness of the Flesh and Spirit…. Perfecting Holiness in the fear of God…..

Rev. 18:4………saying….Come out of her….MY PEOPLE…..THAT YE BE NOT PARTAKERS OF HER SINS……
and that ye receive not of her plagues…… God is calling us out of the……world….to be a Holy People for His Name sake………

It really doesn’t matter if America is the City of Babylon…..or not….God is calling us out…..To be a Holy People…..calling out of this world…

I John2:15…….LOVE NOT THE WORLD……..neither the things that are in the world…… If any man love the world…..the love of the Father is not in him….

16……For all that is in the world….the lust of the flesh…and the lust of the eyes….and the pride of life is not of the Father…..but is of the world…..

17…..And the world passeth away……and the lust thereof…….BUT HE THAT DOETH THE WILL OF GOD………ABIDETH FOR EVER….

WHEREAS: A good place to begin as regards notice to “them,” is send “them” a NOTICE of the rescission of your signature on any and all politically oriented documents to the county voter registration regarding your erroneous federal “voter” registration and thereby, indicate your intent to no longer participate in the franchise political process, and be perceived voluntarily and knowingly exercising the franchise of the corporate beast . . .

You can however re-establish your “Natural Right” to become an “Elector” within you own county, and thereby, exclusively casting a ballot for your county officials; and in particular, your Sheriff. The fraud lies in having to “vote” for a county Sheriff by and through a federal franchise. You can see where the office of Sheriff is co-opted by fraud in the inducement. There is more on this process in regard to re-establishing the county “Electorate” in lieu of the federal “Voter”

Wherefore….Come Out from among them….and be ye separate… saith the Lord…..and touch not the unclean thing…..and I will receive you…