Abstract
Political questions in litigation abound, particularly as the Democratic and Republican parties grow further apart ideologically: Who will be the Speaker of the House, whether to impeach presidents or judges, and whether to expel Members of Congress accused of corruption. The Constitution sets up a separation of powers, where the legislative, executive, and judicial branches can check each other. However, there is a similar doctrine where courts refuse to hear a case because the case presents a topic better left to the political branches: the political question doctrine.
The Supreme Court has not always been reticent to hear cases involving the legislative branch, hearing the case of Powell v. McCormack regarding a Member of Congress’s qualifications to serve. Just a few decades later, the Supreme Court wrote in Nixon v. United States that the judiciary should not hear impeachment cases, reasoning that they are best left to legislative branch resolution. Following the inconsistency in the Court’s review of Powell and Nixon, courts generally embrace Nixon and flout Powell, due in part to Nixon’s ease of application. While courts preferred to follow Nixon’s hands-off approach, this means many legislative controversies are left to the legislative branch to solve. Many scholars disagree about the political question doctrine and debate whether there is really a distinction between political and apolitical questions. This Comment provides a new rule to guide federal courts in hearing cases involving the legislative branch and determining the outer limits of the separation of powers.
In this Comment, I will discuss why federal courts should not be afraid to apply Powell, and I apply a general rule of hearing cases involving substantive issues affecting the legislative branch. I apply such a rule to multiple hypotheticals: Impeachment, congressional procedures like proxy voting or the filibuster, and conflicts involving individual members. This Comment also responds to backlash from those who see judges as “politicians in robes,” and the inevitability of politics in judicial decision-making.
Repository Citation
Claire Smith,
Suspension of the Rules: Why Federal Courts Should Not Fear Adjudicating Cases Involving the Legislative Branch,
9
U. Pa. J. L. & Pub. Affairs
(2024).
Available at:
https://scholarship.law.upenn.edu/jlpa/vol9/iss3/4