A Politics-Reinforcing Political Question Doctrine

60 Pages Posted: 13 May 2016  

Harlan Grant Cohen

University of Georgia School of Law; University of Georgia - Dean Rusk International Law Center

Date Written: May 11, 2016

Abstract

The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny in many future ones.

A return to the old political question doctrine, with its obsequious deference to political branch decisions, is not the answer. Instead, what is needed is a politics-reinforcing political question doctrine that can balance the need for robust review with the desire for robust debate. The uncertain boundaries between the political branches' overlapping powers create space for political debate. Their overlapping powers allow different groups to access the political system and have a voice on policy. Deciding separation of powers questions once-and-for-all can shut off those access points, shutting down political debate. A politics-reinforcing political question doctrine preserves the space in the political system for those debates by turning the pre-Zivotofsky political question doctrine on its head. Whereas the pre-Zivotofsky political question suggested abstention when the branches were in agreement and scrutiny when they were opposed, a politics-reinforcing political question doctrine suggests the opposite, allowing live debates to continue while scrutinizing political settlements. In so doing, it brings pluralism and politics back into the political question analysis, encouraging democracy rather than deference.

Keywords: political question, separation of powers, international law, Zivotofsky I, Zivotofsky II, president, Congress, foreign policy, Marbury v. Madison, foreign affairs, national security, constitutional law, Logan Act, War Powers Resolution, Congressional-Executive Agreements, Sole Executive Agreements

JEL Classification: K19, K33

Suggested Citation

Cohen, Harlan Grant, A Politics-Reinforcing Political Question Doctrine (May 11, 2016). 49 Arizona State Law Journal, Forthcoming; UGA Legal Studies Research Paper No. 2016-20; Dean Rusk International Center Research Paper No. 2016-11. Available at SSRN: https://ssrn.com/abstract=2778752

Harlan Grant Cohen (Contact Author)

University of Georgia School of Law ( email )

Hirsch Hall
Athens, GA 30602
United States
706-542-5166 (Phone)

University of Georgia - Dean Rusk International Law Center ( email )

100 Herty Drive
Athens, GA 30602-6018
United States

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