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But even that "private" plement is missing in cases such as FPC v. United States, wherein an exccutive department and an independent agency are frequently lined up on opposing sides 724 ani in which not the slightest notice is taken of "political questions." The Supreme Court has expressly declined to apply the doctrinc to boundary disputes, which are the quintessence of "sovereignty," bctween two states and between the United States and a statc.722 What, onc asks, is the clement that transforms a dispute between those lesser entities of government, the legislature and executive, into a "political question"? Public law teems with cascs holding that an official has exceeded his authority, and it is difficult to perceive why that issue becomes “political" when Congress rather than a private litigant or an Attorney General asserts that an officer is disobeying its duly enacted statute or is wrongfully impairing a function conferred upon it by the Constitution. Certainly no rcady answer is furnished by the cases. Although it is tempting to examine fresh attempts to categorize "political questions" and to rationalize them anew,723 it must here suffice to discuss the immediate problem in the framework of familiar generalizations, noting in passing that an attempt to root the doctrine in pre-constitutional sources is not securely based.124 Since Baker v. Carr does not explore the implica

720 Scc note 635 supra.

721 Virginia v. West Virginia, 11 Wall. (78 U.S.) 39, 55 (1870). Cf. Florida v. Georgia, 17 How. (58 U.S.) 478 (1854). See also note 703 supra. Such cases may be considered as presenting "purely political questions." WARREN 40. Sce id. at 54.

722 United States v. Texas, 339 U.S. 707 (1950); United States v. Texas, 143 U.S. 621 (1892).

723 Sce Frank, Political Questions, in SUPREME COURT AND SUPREME LAW 36 (1954); Bickel 74-79; Jaffc 1302-07. For earlier studies sce citations, HAKT & WECUSLER 192.

724 Mr. Justice Frankfurter, dissenting in Baker v. Carr, 369 U.S. at 288-89 n.21, stated that: “The reluctance of the English Judges to involve themselves in contests of factional political power is of ancient standing," citing Thc Duke of York's Claim to the Crown, 5 Rotuli Parl. 375 (1460), printed in WAMBAUGII, CASES IN CONSTITUTIONAL LAW 1 (1915). There Prince Richard, Duke of York, laid claim before the House of Lords to the Crowns of England and France. This was an episode in the fratricidal strife between thc Houses of York and Lancaster which David Humc characterized as a "scene of extraordinary cruelty and fierceness." 2 HUME, HISTORY OF ENGLAND 19 (1810). At this moment the gentle Henry VI was imprisoned and the "parliament was surrounded by (Richard's) victorious army." Id. at 23-25. The House turned to thc King's Justices for advice, giving them the King's "command. ment" to oppose the claim. The Justiccs begged off for several reasons, among them that "the matter was so high, and touched the King's high estate and rcgalic, which is above the law and passed their lernyng.” Id. at 2-3. Can the "reluctance" of Judges to take sides in a bloody civil war at the risk of their necks be compared to the task of determining rcapportionment in the United States today? Even 150 years later, Lord Cokc, a brave enough man, yielded in the face of James I's wrath: "Very likely (hc) did fall on his face. It was that or a cell in the Tower." Bowus 306, 383-90.

Mr. Justice Frankfurter also remarks, 369 U.S. at 288 n.21: "Considerations similar to those which determined thc Cherokee Nation Casc and Georgia v. Slanton no doubt explain the celebrated decision in Nobob of the Carnatic v. East India Co.,



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tions of the prior cases "in other contexts” a quick review is essential if their impact upon the executive privilege controversy is to be weighed.12Roughly speaking three major criteria have emerged: (1) power to determine has been lodged elsewhere than in the courts; (2) no available standards for determination are at hand; and (3) enforcement or fashioning of a remedy is surrounded with difficulties.

1. Jurisdiction is Not Lodged Elsewhere

Bakcr v. Carr sums up the matter thus: "The nonjusticiability of a political question is primarily a function of the separation of powers. ."720 In an earlier phrasing, the test is whether "a dispute has been withdrawn from the judiciary or ... by the charter of our government has been reposed in departments other than the judiciary."727 Some constitutional grants are clearer than others, for example the power expressly given Congress to pass upon the "qualifications of its own members."728 Elsewhere exigencies of government have led the Court to find implicit lodgment of power in other branches, such as the determination of "when or whether a war has ended” because of the "need for finality,"720 or because

1 Ves. jun.* 371; 2 Ves. jun.* 56 (1791 and 1793), rather than any attribution of a portion of British sovereignty, in respect of Indian affairs, to the company.” Arguing for the plea to the Nabob's bill, the Attorney General bad said: “The qucstion intended to be submitted to the Court is, whether both parties being sovereign independent powers thçir contests can be made the subject ... for the municipal jurisdiction of any Court in the country of cither of the contracting partics." 1 Vcs. jun. at 372. The plea was overruled for inadequacy in certain particulars; an answer "containing the same matter of Jcsense that had formed the subject of thic pica" wils interposcul, 2 Vcs. jun. at 55, and the Iligh Court of Chancery said: "That treaty was entered into . . . As ... a treaty loctween two sovereigns; and conscqucntly is not a suliject of private, municipal, juriseliction." Id. al 60.

Disputes "between independent nations" hnve been distinguished from those between the United States and a state or between two states to which tlic judicial power cxpressly cxtcnds. United States v. Texas, 143 U.S. 621, 639 (1892). Neither the United States nor a sorcign nation will admit that its rights under an agrecincnt "can bc ultimately deterniincd by a forcign local court without the consent of cach party to the agreement." S HACKWORTII, DiCEST OP INTERNATIONAL LAW 167-68 (1943). The Cherokee Nation case was put in the "independent nation" category with the explanation that there the duty of the Court was not "to lead, but to follow the action of the other departments. ..." United States v. Texas, 143 U.S. 621, 639 (1892).

It is worth noting that in Carnatic, Lord Chancellor Thurlow dismissed out of hand the “argument of inconvenience and the difficulty of making a decree," i Ves. jun. 371, 391 (1791).

725 369 U.S. at 210. 726 lbid.

727 Georgia v. Pennsylvania R.R., 324 U.S. 439, 446 (1945); Wechsler 9. See also Mr. Justice Douglas concurring in Baker v. Carr, 369 U.S. at 246.

728 U.S. Const. art. I, § 5(1).
720 369 U.S. at 213; Coleman v. Miller, 307 U.S. 433, 454 (1939).




some questions "uniquely demand single-voiced statement of the Government's views."730

Implicit "exclusive" legislative or cxecutive jurisdiction is further illustrated by the guarantee of a "republican form of govcrnment" cases, Luther v. Bordcnti and Gcorgia v. Stanton.7:2 Luthcr v. Borden arose out of the Dorr Rebellion in Rhode Island, and in the aftermath “two groups laid competing claims to recognition as the lawful government."738 The Court termed the question "political" for reasons recently summarized in Baker v. Carr:

[T]he commitment to the other branches of the decision as to which is the lawful state government; the unambiguous action by the President, in recognizing the charter government as the lawful authority; the need for finality in the cxecutive's decision; and the lack of criteria by which a court could determine which form of government was republican.734

In Georgia v. Stanton, the Court held that whether Congress may by the Reconstruction Acts "totally abolish the existing State government” of a defeated Confederate state and supplant it by military occupation is a matter of "political jurisdiction."736 The necessity that those who declare and conduct a war should determine what measures are required after victory to accomplish the results for which the war was fought seems almost self-evident, particularly when Congress and the President concur.736 Occupation and pacification of hostile territory, even after a Civil War, is not a matter upon which "wrangling lawyers" can shed much light.737 Whether such cases and the "foreign relations" cases are explicable in terms of constitutional interpretation, i.e., "a textually demonstrable constitutional commitment of the issue to a coordinate political department" or whether they turn on considerations that run be

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730 369 U.S. at 211. Professor Jaffe concludes that: “The Constitution itself is construed to assign this jurisdiction" to recognize a foreign government. Jaffe 1302. Bickel 46, considers that the judicial process goes beyond "constitutional interpretation" to "something greatly more flexible, something of prudence, not construction and not principle."

731 7 How. (48 U.S.) 1 (1849).
732 6 Wall. (73 U.S.) 50 (1867). See 369 U.S. at 218-25.
733 Id. at 218.
734 Id. at 222.
736 73 U.S. at 76-77.

736 “Congress having determined that the effects of the recent hostilitics required extraordinary measures to restore governments of a republican form, this Court refused to interfere with Congress' action. ..." 369 U.S. at 225.

737 Cf. Bickel 75. The critique of Luther v. Borden and Georgia v. Stonton by Mr. Justice Douglas, in Baker v. Carr, 369 U.S. 242-43 n.2, 246 n-3 (concurring opinion) needs to be taken into account.

788 369 U.S. at 217.



(Vol. 12: 1287

yond "interpretation,"10 the end result is judicial abstention because the jurisdiction to decide is or should bc lodged clscwhere.

The power finally to decide whether Congress has an absolute right to demand information or whether the executive has an absolute right to refuse it plainly was not lodged in either of those branches. Essentially this is a dispute about the scope of intersecting powers; if one branch has the claimed power the other branch necessarily has not. It seems axiomatic that one branch cannot finally decide the reach of its own power when the result is to curtail a power claimed by another. Madison said in The Fcdcralist that neither of the departments can pretend to an exclusive or superior right of settling the boundaries between their respective prowcrs. . .,"740 Unless the two branches arc to be remillcd to the "arial or physical strength" which Uniled Slulcs v. Trxus decric:1,"“' the power 10 cleciile suicli disputes must rosiile in the courts. liven in the smoke and turmoil of Luther v. Bordon, thic Supreme Court was at pains to differentiate from the "political" dispute for power of competing state factions the 1

high power ... of passing judgment upon the acts ... of the legis-
lative and cxccutive branches of the fcdcral government, and of deter-
mining whcther they arc bcyond the limits of the power marked out

for them respectively by thc Constitution of thc United States.742 "Some arbiter," said Mr. Justice Jackson, "is almost indispensible when power is ... balanced between different branches, as the legis

730 Scc Bickel 74-79.

740 THE FEDERALIST, No. 49, at 348 (Wright cd. 1961). Truc, Madison also said that no provision was made "for a particular authority to determine the limits of thc constitucional division of power 'between the branches of the government. In all systems there are points which must be adjusted by thc departments themsclves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community. ..." 1 ANNALS Or Conc. 520 (1789).

Thc vicw of Hamilton, Tue FEDERALIST, No. 78, and Marshall, Marbury v. Madison, 1 Cranch (5 U.S.) 137, 176 (1803), that it was for the courts to declare constitutional limits is no less applicable because the limits are drawn between two branches. In Madison's own Virginia, Judge George Wythe, was prepared to draw those lines between the House of Delegates and Senate. See text accompanying note 707 supra.

And Madison by no means expressed a general viewpoint. In the same debate in the First Congress on the President's removal power, Elbridge Gerry, also a member of the Constitutional Convention, said that if the President and the Senate differ, "let it go before the proper tribunal; the judges are the constitutional umpires on such questions." 1 ANNALS OF CONG. 492 (1789). To the same effect is Congressman Plater in 1802. 11 ANNALS OF CONG. 935 (1802). And so in the event it transpired. Sec text accompanying notes 711-14 supra. See also note 40 supra.

In the "Steel Seizure" case, Mr. Justice Burton said: "[The President's order ... invaded the jurisdiction of Congress." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 660 (1952) (concurring opinion).

741 143 U.S. 621, 641 (1892).
742 48 U.S. at 47.




lative and exccutivc. . . . Each unit cannot be left to judge the limits of its own power."741 Were the "executive privilege" rights more clearly "political,” the courts, said Baker v. Carr, “cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' cxcccds constitutional authority."744 For, said Chicf Justice White in another “political question" case, it is the "ever present duty" of the courts “to enforce and uphold the applicable provisions of the Constitution as to each and every exercise of governmental power."746

2. Adequate Criteria for Determination Are Available

"The lack of criteria” for judicial determination, mentioned in Luther v. Borden, is another oft-mentioned test of "political question." There the Court dwelt on the practical and evidentiary difficulties of determining whether the Rhode Island constitution sponsored by the Dorr faction was adopted by "authorized" voters.746 Conversely, said Baker v. Carr, if “clearly definable criteria for decision may be available ... the political question barriers falls away." 17 Despite the "enormously difficult problem of working out standards for utilizing the equal protection provision in the apportionment cases,” the majority in Baker v. Cary entered the field." In contrast, no new standards are required to be fashioned for dealing with the executive privilege controversy. For centuries Anglo-American Courts have dealt with diverse claims of privilege to withhold information, and in almost every category of claimed executive privilege to withhold information there exist judicial precedents formulated in private litigation. The task will not therefore require the formulation of new standards but rather adaptation and application of existing ones. Viewed in terms of fitness for judicial determination, the basic issues of fact and law are

743 JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY 9 (1941). Compare HAND supra note 708.

744 369 U.S. at 217. Sce id. at 230. Compare United States v. Lovett, 328 U.S. 303 11046), discussed in text accompanying notes 713-16 supra.

715 Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 150 (1912).

Given a statute directing a department or an agency to furnish information to Congress, sce text accompanying note 79 supra, determination whether an oficer must comply with the statutc cannot be a "political question"; for the power so to determine is necessarily confided to the courts.

740 48 U.S. at 41-42. Sec also Colcman v. Miller, 307 U.S. 433, 454-55 (1939). 747 369 U.S. at 214.

748 Emerson 65. Mr. Justice Douglas justly remarks that: "Adjudication is often perplexing and complicated. An example of the extreme complexity of the task can be seen in a decrcc apportioning water among the several states.” Baker v. Carr, 369 U.S. at 245 (concurring opinion).

748 Sce, pp. 1293-1308 supra.

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