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But even that "private" plement is missing in cases such as FPC v. United States, wherein an exccutivc department and an independent agency arc frequently lined up on opposing sicles72" and in which not the slightest notice is taken of "political questions." The Supreme Court has expressly declined 10 apply the doctrine 10 boundary disputes, which are thc quintessence of "sovereignty," bclwccn two statcsal and between the United States and a statc.722 What, onc asks, is the clcment that transforms a dispute between those lesser entities of government, the legislature and executive, into a “political question"? Public law tecms 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 cnacted statute or is wrongfully impairing a function confcrred 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.724 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). Cl. 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; Jaffe 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 the 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 the King's Justices for advice, giving them the King's "command. ment" to oppose the claim. The Justices 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" oi 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 Coke, a brave enough man, yielded in the face of James I's wrath: "Very likely (hc) did fall on bis face. It was that or a cell in the Tower." Bowi.X 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. Stanion no doubt explain the celebrated decision in Nabob of the Cornalic v. East India Co.,



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tions of the prior cases "in other contexts" a quick review is essential is their impact upon the executive privilege controversy is to be weighed.72Roughly speaking three major criteria have emerged: (1) power to determine has been lodged elsсwhere 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


Baker v. Carr sums up the matter thus: "The nonjusticiability of a political question is primarily a function of the separation of powers."726 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 Vcs. jun.* 371; 2 Ves. jun.* 56 (1791 and 1793), rather than any attribution of a portion of British sovercignty, in respect of Indian affairs, to the company." Arguing for the plca to the Nabob's bill, the Attorney General had said: "The question intended to be submitted to the Court is, wbether 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 thc contracting partics." i Ves. jun. at 372. The plan was overruled for inadequacy in certain particulars; an answer "conlaining the same matter of defense that had formcıl the subject of the plea" was interposcil, 2 Ves, jun. at 5s, and the Iligh Court of Chancery said: “That Ireaty was entered into ... trenly lictween two sovereigns; and conscqucully is not a subject or private, municipal, jurisdiction." Id, at 60.

Dispules "wtworn imolependent nations" have been distinguished from thosc lctween the United States and a state or bclwccn two states to which the juclicial power expressly cxtends. United States v. Texas, 143 U.S. 621, 659 (1892). Neither thic United States nor a sorcign nation will admit that its rights under an agreement "can bc ulumatcly dctcrniined by a forcign local court without thc consent of cach party to the agreement." 5 HACKWORTII, DIGEST OF 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 Carnotic, 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 Ibid.

727 Gcorgia 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).
729 369 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 cxccutive jurisdiction is further illustrated by the guarantee of a "republican form of govcrnment" cases, Luther v. Bordcn781 and Gcorgie v. Stanton.7:2 Luthcr v. Bordcn arose out of the Dorr Rebellion in Rhode Island, and in the aftermath "two groups laid competing claims to recognition as the lawful government."733 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 Presi-
dent, 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

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.137 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"738 or whether they turn on considerations that run be

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.
735 73 U.S. at 76-77.

730 “Congress having determined that thc cffccts of the recent hostilitics rcquired cxtraordinary measures to restorc governments of a republican form, this Court refused to interfcre with Congress' action. ..." 369 U.S. at 225.

737 C/. Bickel 75. The critique of Luther v. Borden and Georgia v. Slonton 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.



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yond "intcrprctation,"7a0 the end result is judicial abstention because the jurisdiction to decide is or should be 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 onc branch cannot finally decide the reach of its own power when the result is to curtail a power claimed by anotherMadison said in Tho rcdcralist that neither of the departments can pretend to an exclusive or superior riglit of scilling the boundaries between their respective prowcrs. ..."*40 Unless the iwo branches arc to be remilled to the "erial of physical strength" which United Slulcs v. Trxus decric«,?" the power 100 cleciile such clisputes must resisle in the corris. liven in thic: smoke and turmoil of Luther v. Burdon, thic Supreme Court was at pains to differentiate from the “political" dispute for power of competing state factions the

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

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

730 Sec Bickel 74-79.

740 TIE 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 the 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 compctent. If it cannot bc dctcrmined in this way, there is no resourcc lcft but the will of the community. ..." 1 ANNALS Or Coxo. 520 (1789).

The vicw of Hamilton, TuE FEDERALIST, No. 78, and Marshall, Marbury v. Madison, i 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 supro.

In the "Steel Seizure" case, Mr. Justice Burton said: "[T]be 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 executive. ... Each unit cannot be left to judge the limits of its own power."74.1 Were the "executive privilege" rights more clearly "political,” the courts, said Bakcr v. Carr, "cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political cxcccds constitutional authority."746 For, said Chicf Justice White in another “political question" case, it is the "ever present duty" of the courts “to cnforce and uphold the applicablc 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. Carr entered the field.148 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,749 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 notc 708.

741 369 U.S. at 217. Sce id. at 230. Compare United States v. Lovett, 328 U.S. 303 (1046), discussed in text accompanying notes 713-16 supra.

745 Pacific States Tel. & Tcl. 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 whcther an officer must comply with the statutc cannot bc 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).

749 Scc pp. 1293-1308 supra.

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