{"id":54657,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/why-the-political-question-doctrine-shouldnt-necessarily-prevent-courts-from-asking-whether-a-spending-bill-actually-passed-congress.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"why-the-political-question-doctrine-shouldnt-necessarily-prevent-courts-from-asking-whether-a-spending-bill-actually-passed-congress","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/why-the-political-question-doctrine-shouldnt-necessarily-prevent-courts-from-asking-whether-a-spending-bill-actually-passed-congress.html","title":{"rendered":"Why the “Political Question Doctrine” Shouldn’t Necessarily Prevent Courts From Asking Whether a Spending Bill Actually Passed Congress"},"content":{"rendered":"\n
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Why the “Political Question Doctrine” Shouldn’t Necessarily Prevent Courts From Asking Whether a Spending Bill Actually Passed Congress
Part Two in a Series<\/span><\/h1><\/td>\n <\/tr>\n

By VIKRAM DAVID AMAR<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Apr. 13, 2006<\/td>\n\n <\/tr>\n <\/table>\n

In my most recent column, Part One of this series<\/a>, 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.) <\/p>

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. <\/p> \n\n\n

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. <\/p>

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?<\/p>

The Supreme Court Precedent Confronting Challengers to the Deficit Reduction Act: Marshall Field v. Clark<\/i><\/b><\/p>

On the face of things, the requirement under Article I, Section 7<\/a> of the Constitution that a bill – the same bill – pass both<\/u> 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.<\/p>

But an 1892 decision, Marshall Field v. Clark<\/a><\/i>, 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<\/a>. Plaintiffs argued that these constitutionally-mandated Journals should be considered the definitive evidence for determining what measure actually passed each legislative chamber.<\/p>

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:<\/p>

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.<\/p> Column continues below \u2193<\/a>\n\n