Why the "Political Question Doctrine" Shouldn't Necessarily Prevent Courts From Asking Whether a Spending Bill Actually Passed Congress
Part Two in a Series

By VIKRAM DAVID AMAR

Thursday, Apr. 13, 2006

In my most recent column, Part One of this series, I described an important legal challenge being raised in Alabama federal court against the so-called Deficit Reduction Act of 2005. (A second lawsuit, along the same lines as the one I described, has been filed by Public Citizen in Washington DC.)

The gist of these lawsuits is that the version of the Act passed by the Senate and signed by the President was never, in fact, voted on favorably by the House of Representatives, and thus cannot be considered a "Law of the United States" under the Constitution. As I previously explained, the factual allegations concerning Congressional procedural irregularity seem strong (but remain to be proven), and the plaintiffs' legal theory on the merits is pretty unassailable. The biggest question may be whether courts will entertain the cases at all.

In today's column, I discuss what is perhaps the highest hurdle facing the plaintiffs in these cases - the so-called "political question" doctrine. Under this judge-fashioned doctrine, federal courts designate certain kinds of disputes "non-justiciable" questions - that is, questions into which they believe judges simply cannot inquire without offending the delicate separation-of-powers balance set up by our Constitution.

Political question doctrine is an amorphous body of law that allows federal courts to pick and choose when they will stay out of the fray. How will political question doctrine apply in this case? And is this the kind of dispute in which courts should step in, or refrain from doing so?

The Supreme Court Precedent Confronting Challengers to the Deficit Reduction Act: Marshall Field v. Clark

On the face of things, the requirement under Article I, Section 7 of the Constitution that a bill - the same bill - pass both houses of Congress before it can be signed into law would seem like something courts can and should implement. Judges enforce procedural requirements all the time; the very idea of "due process of law" embodied in the Fifth and Fourteenth Amendments presupposes that courts will set aside government actions that have not been accomplished in the proper manner.

But an 1892 decision, Marshall Field v. Clark, presents a big obstacle here. In that case, plaintiffs alleged that the version of a statute signed by the President in fact omitted a section that had been included in the version approved by both the House and the Senate. Plaintiffs offered to prove this fact by reference to the legislative "Journals" that the Constitution explicitly requires each house to keep as a record of its proceedings in the so-called "Journal Clause," Article I, Section 5. Plaintiffs argued that these constitutionally-mandated Journals should be considered the definitive evidence for determining what measure actually passed each legislative chamber.

But the Supreme Court declined to examine the Journals, holding that the matter presented a question not amenable to judicial review. The Court pointed out that in many instances legislative Journals were not, in fact, accurate records of actual proceedings. The Court also emphasized the insult to Congress and Congressional leaders that would be involved in any judicial inquiry. According to the Court:

The signing by the Speaker of the House [], and by the [leader] of the Senate, . . . of an enrolled bill is an official attestation by the two houses of such bill as the one that has passed Congress. . . And when a bill, thus attested, receives [Presidential] approval, . . .its authentication as a bill that has passed Congress should be deemed complete and unimpeachable . . . The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated.

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The Marshall Field case seems to be quite relevant to the Deficit Reduction Act challenge. If you can't challenge a bill signed by the President on the ground that it never (in its signed form) passed either house of Congress (as in Marshall Field), then presumably you can't challenge a bill on the ground that it passed one but not both houses of Congress (as in the present alleged state of affairs).

Is Marshall Field v. Clark Still Good Law?

Does Marshall Field necessarily doom the Deficit Reduction Act challenges? Perhaps not. For starters, there is a significant chance the Supreme Court would not reaffirm Marshall Field today.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court described some of the "special reason[s] over and above the belief that [a] prior case was wrongly decided" that may overcome stare decisis considerations and justify overruling a precedent. (In an earlier column, my brother, Akhil Reed Amar, and I explained why we have problems with the Casey "special reasons" approach, but for present purposes I will simply apply the Casey framework, since that is the framework that the Court itself seems inclined to apply.)

Two "special" reasons Casey said might justify overruling past precedent are: (1) a change in the factual foundation or factual understanding that underlay the earlier ruling; and (2) subsequent rulings by the Court that render the earlier ruling doctrinally incoherent or unstable.

In the Marshall Field context, one or both of those reasons might apply.

New Facts: More Reliable Recordkeeping and Alternative Ways of Proving Facts

As to the facts, much of the Marshall Field ruling appeared to rest on an empirical sense of the undependability of the legislative Journals on which the plaintiffs based their rendition of legislative happenings. The Marshall Field Court canvassed many state court cases disparaging the accuracy and scrupulousness of legislative Journal recordkeeping.

It may be that today, because of technological and other developments, it is easier to reconstruct what actually was voted on in each Congressional chamber. Perhaps Journal recordkeeping is more accurate, or perhaps there are other means - deposing individuals involved, and so on - that weren't as available a hundred years ago to establish key facts.

Subsequent Law: An Emphasis on Bicameralism, and a Narrowed Political Question Doctrine

As for intervening legal developments, I would point to at least two big ones. First, there is the important precedent set in 1984 by Immigration and Naturalization Service v. Chadha, in which the Court struck down so-called "legislative vetoes" -- devices by which one house of Congress, acting alone, had effectively been making federal law. In Chadha, the Court affirmed the importance of enforcing the Constitution's bicameralism requirement - the notion that all federal lawmaking should go through both houses of Congress. And, of course, that is the very point the Deficit Reduction Act challengers are making.

Second, and more important, the Court narrowed (perhaps to the point of meaninglessness) the Marshall Field ruling a decade and a half ago in United States v. Munoz-Flores. There, a criminal defendant raised a challenge to a federal statute under the so-called Origination Clause of Article I, Section 7, which requires that revenue raising - that is, tax -- bills "originate" in the House of Representatives. (The framers apparently thought this was a good idea because the House was closer than was the Senate to "the People" who were ultimately getting taxed.)

The Munoz-Flores Court ultimately rejected the challenge, holding that the statute in question was not a revenue-raising law subject to the Origination Clause's constraints. But on the way, the Court first held that the challenge did not present a political question under the Marshall Field case.

Writing separately, Justice Scalia argued that judicial consideration of where the bill originated was foreclosed, because when the leaders of the House and Senate sent it to the President with an "H.R." designation on it, they effectively certified that the bill did, in fact, begin in the House. He argued that Marshall Field stood for the proposition that courts cannot pierce - that is, look behind -- that certification without offending the constitutional separation of powers.

The majority opinion seemed to accept Justice Scalia's premise that the "H.R." designation on the bill could indeed be viewed as a certification by Congressional leaders on the factual question of place of origin. But the Court responded to Justice Scalia by characterizing Marshall Field as a case about a claim arising under an "interpretation of the Journal Clause," not any other "constitutional requirement binding Congress." "Where, as here," the Munoz-Flores majority wrote, another "constitutional provision [to wit, the Origination Clause] is implicated, Field does not apply."

This limitation on Marshall Field - that the case does not apply when a "constitutional requirement binding Congress" embodied in a "constitutional provision is implicated" -- effectively overrules it. Why? Because in Marshall Field there was another "binding constitutional provision" besides the "Journal Clause" that was "implicated" - namely, Article I, section 7's provisions laying out the requirements for passing a law.

Munoz-Flores' distinction of Marshall Field is thus quite unconvincing. And when a distinction doesn't work logically, in hindsight we often say the second case "effectively" overruled the first one.

That the analyses of Munoz-Flores and Marshall Field cannot peacefully coexist can be seen by asking the following question: Would it make sense for courts to police Article I's "Origination Clause" requirement (which focuses on where a bill started, not whether it was ever passed), but not to police Article I's requirement of bicameral approval as a precondition for lawmaking? I have trouble seeing how.

Lower Courts Are Nonetheless Bound By Munoz-Flores Distinction

That reality leaves the Supreme Court with two choices: It will have to back away from either Munoz-Flores or Marshall Field. Since Munoz-Flores came later - and consciously decided not to follow the spirit of Marshall Field - odds are good that Marshall Field will not survive.

But what is a lower court supposed to do in the meantime? Surely, lower courts can point out the discrepancy between Marshall Field and Munoz-Flores and "tee up" the matter for the Supreme Court. But can, and should, lower courts bury Marshall Field on their own?

Probably not. The Supreme Court has admonished, in Rodriguez de Quijas v. Shearson /American Express Inc., that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

What does that mean for lower courts in this setting? Recall that in Munoz-Flores, the Supreme Court itself tried to distinguish (however implausibly) rather than overrule Marshall Field. That indicates that lower courts should strain hard to make some sense of the Munoz-Flores Court's "distinctions" to try to preserve some (albeit, a dangling) vestige of Marshall Field.

Is there Another "Binding" "Constitutional Provision Implicated" in the Present Case?

Does this mean that the challengers to the Deficit Reduction Act of 2005 have to wait until their case gets to the Supreme Court to obtain justice? That is, if the Marshall Field plaintiffs' invocation of Article I, Section 7's general requirements for lawmaking did not "implicate" a "binding constitutional provision" in the eyes of the Munoz-Flores Court, should the Deficit Reduction Act challengers fare the same?

Not necessarily. As I argued in my earlier column in this series, because the Deficit Reduction Act is a spending measure, the present case involves more than just Article I, Section 7's bicameralism requirements - it also involves Article I, section 9's so-called Appropriations Clause, which says that "[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . ."

The Appropriations Clause seems to be as specific a provision "binding Congress" (to use Munoz-Flores' words) as one could imagine: It says point blank that the federal government cannot spend except pursuant to a "Law". And, of course, plaintiffs' challenge to the Deficit Reduction Act contends that, because the measure signed by the President did not satisfy Article I's bicameralism requirement, it is not a "Law."

Put another way, if the "Origination Clause" was a "binding" "constitutional provision [that was] implicated" in Munoz-Flores -- taking that case outside the scope of Marshall Field -- so too would the "Appropriations Clause" be one. (Importantly, in Marshall Field, the Appropriations Clause was not considered by the Court.)

Indeed, both clauses express special reservations about particular kinds of federal actions - revenue raising measures, and spending measures. The former focuses on the "where" of origination; the latter focuses on the "how" of enactment.

Moreover, I submit the latter is a much more important "constitutional provision implicated." After all, if a taxation bill really does pass both houses and is signed by the President, quibbles over its starting point seem rather technical. By contrast, questions over whether a spending measure actually passed both houses seem more fundamental.

Thus, a conscientious and sensible lower court can, and should, limit Marshall Field along the Munoz-Flores lines and entertain the present challenge to the Deficit Reduction Act.

Of course, plaintiffs still need to prove their version of Congressional shenanigans is factually correct, and there may be strong reasons for according the certifications of Congressional leaders substantial deference.

That is, perhaps the challengers should be required to prove the alleged bicameralism violation by something like "clear and convincing" evidence - such deference may be an appropriate component of the separation of powers.

The bottom line, though, is that the courts - even the lower courts - should not decline to entertain the controversy altogether. Nothing in constitutional doctrine or common sense requires complete abstention here. The courts have jurisdiction, and they ought to exercise it.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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