From this case and later applications of it, a political question may be defined as a question relating to the possession of political power, of sovereignty, of government, the determination of which is vested in Congress and the President whose decisions are conclusive upon the courts. The more common classifications[205] of cases involving political questions are: (1) those which raise the issue of what proof is required that a statute has been enacted,[206] or a constitutional amendment ratified;[207] (2) questions arising out of the conduct of foreign relations;[208] (3) the termination of wars,[209] or rebellions;[210] the questions of what constitutes a republican form of government,[211] and the right of a state to protection against invasion or domestic violence;[212] questions arising out of political actions of States in determining the mode of choosing presidential electors,[213] State officials,[214] and reapportionment of districts for Congressional representation;[215] and suits brought by States to test their political and so-called sovereign rights.[216] The leading case on the evidence required to prove the enactment of a statute is Field v. Clark,[217] where it was held that the enactment of a statute is conclusively proved by the enrolled act signed by the speaker of the House of Representatives and the President of the Senate, and the Court will not look beyond these formalities of record by examining the journals of the two houses of Congress or other records. Similarly, the Court has held that the efficacy of the ratification of a proposed constitutional amendment in the light of previous rejection or subsequent attempted withdrawal is political in nature, pertaining to the political departments, with the ultimate authority in Congress by virtue of its control over the promulgation of the adoption of amendments.[218] Simultaneously, the Court ruled that the question of the lapse of a reasonable length of time between proposal and ratification is for Congress to determine and not the Court.[219]
A few cases will suffice to illustrate the application of the concept of political questions since 1938. In Colegrove v. Green,[220] a declaratory judgment was sought to have the division of Illinois into Congressional districts declared invalid as a violation of the equal protection of the laws. Justice Frankfurter in announcing the judgment of the Court, in an opinion in which Justices Reed and Burton joined, was of the opinion that dismissal of the suit was required both by the decision in Wood v. Broom,[221] that there is no federal requirement that Congressional districts shall contain as nearly as practicable an equal number of inhabitants, and because the question was not justiciable. Justice Rutledge thought that Smiley v. Holm[222] indicated that the question was justiciable but concurred in the result on the ground that the case was one in which the courts should decline to exercise jurisdiction.[223] Justice Black in a dissent supported by Justices Douglas and Murphy thought that the case was justiciable and would have invalidated the reapportionment, leaving the State free to elect all of its representatives from the State at large.[224] In MacDougall v. Green,[225] however, the Court seemed to regard as justiciable the question of the validity of the provision of the Illinois Election Code requiring that a petition for the nomination of candidates of a new political party be signed by 25,000 voters including at least 200 from each of at least 50 of the States' 102 counties, for it went on to sustain the provision in a brief per curiam opinion. In Ludecke v. Watkins,[226] the Court held, as it had earlier, that the determination of the cessation of a state of war is a question for the political branch of the Government and not for the courts. Nevertheless, the Court actually found a state of war to exist between the United States and Germany after the end of hostilities, and ruled that an enemy alien is not entitled to judicial review in a deportation proceeding. Very recently in South v. Peters,[227] the Court refused to pass upon the validity of the county unit scheme used in Georgia for the nomination of candidates in primary elections.
Perhaps no portion of Constitutional Law pertaining to the judiciary has evoked such unanimity as the rule that the federal courts will not render advisory opinions. In 1793 the Supreme Court refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution. After convening the Court which considered the request, Chief Justice Jay replied to President Washington concerning the functions of the three departments of government: "These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the Executive departments."[228] Since 1793 the Court has frequently reiterated the early view that the federal courts organized under article III cannot render advisory opinions or that the rendition of advisory opinions is not a part of the judicial power of the United States.[229]
Even in the absence of this early precedent, the rule that constitutional courts will render no advisory opinions would have logically emerged from the rule subsequently developed, that constitutional courts can only decide cases and controversies in which an essential element is a final and binding judgment on the parties. As stated by Justice Jackson, when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action, "To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President's exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action."[230] The early refusal of the Court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,[231] or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government,[232] or where the issues involved were abstract or contingent.[233]
The rigid emphasis placed upon such elements of the judicial power as finality of judgment and an award of execution in United States v. Ferreira,[234] Gordon v. United States[235], and Liberty Warehouse v. Grannis,[236] coupled with the equally rigid emphasis upon adverse parties and real interests as essential elements of a case or controversy in Muskrat v. United States,[237] created serious doubts concerning the validity of a proposed federal declaratory judgment act. These were dispelled to some extent by Fidelity National Bank v. Swope,[238] which held that an award of execution is not an essential part of every judgment and contained general statements in opposition to the principles of the Grannis and Willing cases. Then in 1933 the Supreme Court entertained an appeal from a declaratory judgment rendered by the Tennessee Courts in Nashville, C. & St. L.R. Co. v. Wallace,[239] and in doing so declared that the Constitution does not require that a case or controversy be presented by traditional forms of procedure, involving only traditional remedies, and that article III defined and limited judicial power not the particular method by which that power may be invoked or exercised. The Federal Declaratory Judgments Act of 1934 was in due course upheld in Aetna Life Insurance Co. v. Haworth,[240] as a valid exercise of Congressional power over the practice and procedure of federal courts which includes the power to create and improve as well as to abolish or restrict.
The Declaratory Judgment Act of 1934