Article III and the Political-Question Doctrine

56 Pages Posted: 26 Mar 2020 Last revised: 16 Nov 2021

Date Written: March 1, 2020

Abstract

Courts and commentators have often sourced the political-question doctrine in Article III, a repository of other separation-of-powers doctrines applicable to the federal courts. Rucho v. Common Cause, a blockbuster political-question case decided in 2019, explicitly tied the doctrine to Article III. But the historical development of the doctrine undermines the depth of that connection. Further, sourcing the doctrine in Article III leads to some very odd effects, including leaving state courts free to answer federal political questions. This Article argues that the source of the political-question doctrine is in the substantive law, not in Article III. Such an orientation helps explain a number of puzzling attributes of the doctrine, including why federal courts retain jurisdiction over political-question cases, why state courts must follow the federal political-question doctrine, and why some political questions can be delegated back to the courts. Refocusing the political-question doctrine on the substantive law, rather than on Article III, helps better allocate power among federal courts, state courts, and political branches.

Keywords: political-question doctrine, rucho, article III, political question

Suggested Citation

Dodson, Scott, Article III and the Political-Question Doctrine (March 1, 2020). 116 Northwestern University Law Review 681 (2021), UC Hastings Research Paper No. 396, Available at SSRN: https://ssrn.com/abstract=3546935 or http://dx.doi.org/10.2139/ssrn.3546935

Scott Dodson (Contact Author)

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)

HOME PAGE: http://www.uchastings.edu/faculty/dodson/index.php

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
108
Abstract Views
823
rank
341,003
PlumX Metrics