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Research Service
The Political Question Doctrine: Foreign
Affairs as a Political Question (Part 4)
June 14, 2022
This Legal Sidebar is the fourth in a six-part series that discusses the Supreme Court's political question
doctrine, which instructs that federal courts should forbear from resolving questions when doing so would
require the judiciary to make policy decisions, exercise discretion beyond its competency, or encroach on
powers the Constitution vests in the legislative or executive branches. By limiting the range of cases
federal courts can consider, the political question doctrine is intended to maintain the separation of
powers and recognize the roles of the legislative and executive branches in interpreting the Constitution.
Understanding the political question doctrine may assist Members of Congress in recognizing when
actions of Congress or the executive branch would not be subject to judicial review. For additional
background on this topic and citations to relevant sources, please see the Constitution of the United
States, Analysis and Interpretation.
One area where the political question doctrine has particular importance is in foreign affairs. In 1918, the
Court wrote, The conduct of the foreign relations of our government is committed by the Constitution to
the executive and legislative-'the political'-departments of the government, and the propriety of what
may be done in the exercise of this political power is not subject to judicial inquiry or decision.
However, despite that sweeping statement, as the Court recognized in Baker, not every case or
controversy which touches foreign relations lies beyond judicial cognizance; rather, the Court analyzes
each question on a case-by-case basis. For example, many pre-Baker cases concluded that the judiciary
was bound to defer to the political branches on certain questions involving the validity of treaties or the
recognition of foreign governments. The Baker court characterized those cases as ones in which
resolution of such issues frequently turn on standards that defy judicial application, ... involve the
exercise of a discretion demonstrably committed to the executive or legislature . . . [or] uniquely demand
single-voiced statement of the Government's views.
The first major post-Baker case to consider these principles was the 1973 case Gilligan v Morgan. In
Gilligan, the Supreme Court declined to consider a claim that defective training of the Ohio National
Guard had led to the violence that occurred at Kent State University three years earlier. The plaintiffs
sought a judicial evaluation of the appropriateness of the 'training, weaponry and orders' of the Ohio
National Guard and continuing judicial surveillance over the Guard to ensure compliance with any
court-approved requirements. Although the case did not involve foreign policy, it raised related
considerations. Recognizing that the case involved [t]he complex, subtle, and professional decisions as
Congressional Research Service
https://crsreports. congress.gov
LSB10759
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govegig0001&div=1&collection=&method=preview&ext=.png&size=3)
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