Why Are the Lower Courts (Mostly) Ignoring Zivotofsky I’s Political Question Analysis?

Last week, the Fourth Circuit heard an appeal in Al Shimari v. CACI Premier Technology, Inc. Steve Vladeck earlier flagged the case at Just Security, but for those who haven't read his post: Al Shimari alleges that a military contractor was partly responsible for torturing him at Abu Ghraib. This is the third time the Fourth Circuit has heard an appeal in CACI, and now the court is considering whether the political question doctrine makes this case nonjusticiable. Steve thinks the district court treated the political question doctrine too expansively, and he co-authored an amicus brief to that effect. He marshals a lot of arguments in support of his position, but one major point in his favor seems to be the Supreme Court’s 2012 decision in Zivotofsky v. Clinton (“Zivotofsky I”). That case can be read to have sharply narrowed the political question doctrine and thus may require lower courts to hear cases they might have previously considered nonjusticiable.

Rather than argue that this reading of Zivotofsky I is the best interpretation of that case, in this post I'm going to review U.S. appellate court political question jurisprudence since Zivotofsky I and ask if that case changed the lower courts' analysis. The answer, somewhat peculiarly, seems to be that it has not. I want to offer some speculations about why this is so.

First, some background on the political question doctrine. Marbury v. Madison stated: “By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience.” Chief Justice John Marshall then disclaimed authority for examining how the President and his officers execute these duties “in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

Courts subsequently treated certain “political questions” as nonjusticiable and declined to exercise jurisdiction over issues that raised them. The Supreme Court’s 1962 decision Baker v. Carr described six circumstances in which a legal issue might be a political question: (1) where the Constitution makes a different branch responsible for deciding the issue; (2) where courts lack judicially manageable standards for resolving the case; (3) where accepting jurisdiction would force the court to make a policy determination; (4) where deciding the issue would prove disrespectful to coordinate branches of government; (5) where there is the need to respect a political branch’s decision on the matter as final; and (6) where the need for the U.S. government to speak with one voice on the issue outweighs others considerations.

The first two categories are legalistic and relatively narrow. The latter four categories are more prudential. Because these prudential considerations could cover a wider variety of cases, lower courts used often invoked them when they desire to avoid sitting in judgment of cases that might implicate hard or contested foreign policy issues.

That’s where Zivotofsky I comes in. The Court reversed the D.C. Circuit’s dismissal of a suit by an American born in Jerusalem attempting to force the Secretary of State to list his place of birth as “Israel” on his passport, in accordance with a Congressional statute giving him that right. Presidents Bush and Obama both declined to comply with the law on the grounds that it unconstitutionally infringed their exclusive recognition power. Last year, the Court sided with Obama on the merits in Zivotofsky II, but In Zivotofsky I, eight justices believed the case did not implicate the political question doctrine, and the majority opinion characterized the doctrine as a “narrow exception” to courts’ “responsibility to decide cases properly before” them. Writing for five other justices, Chief Justice Roberts grounded his decision on the fact that the relevant legal questions were not textually committed to any other branch and that the court did not lack judicially manageable standards for deciding the issues. In other words, the Chief Justice applied only the first two Baker factors, though he did not say anything about the legal relevance (or irrelevance) of the other four factors. Justices Sotomayor and Breyer authored separate opinions reaffirming the relevance of these four prudential Baker factors, though downplaying them as rarely dispositive. Sotomayor thought them insufficient in Zivotofsky I. Breyer disagreed, and argued that the case should be dismissed as a political question.

Some thought, even before Zivotofsky I, that appellate courts invoked the political question doctrine too often. (For an example, see Judge Kavanaugh’s concurrence in El-Shifa.) But the six-justice majority decision that ignored the four prudential Baker factors seemed to some like a signal that appellate courts should limit their political question analysis to the first two Baker factors—or at least discount the prudential factors.

Nonetheless, almost no appellate court has picked up on this apparent cue. I’ve provided a full list of the cases I found at the end of this post and categorized them as having not included the prudential factors, as having included them, having included them while discounting them, or being silent on the issue. (I only included majority decisions for appellate court panels.) Only one appellate panel imitated Zivotofsky I in lopping off the prudential Baker factors—and a prior and subsequent panel from that same circuit (the DC Circuit) took the prudential Baker factors seriously. Eight panels applied the Baker factors as if nothing had changed, and two panels included but seemed to minimize the prudential factors’ importance. Another seven decisions were silent on the issue.

Some readers might dispute my some of characterizations. Perhaps a few cases I classified as including prudential factors might be better read as discounting prudential factors. Categorizing cases is of course tricky, and I’ve tried to use my best judgment. Regardless, I think my overall takeaway still stands even if a given readers disputes an individual categorization or two: Many appellate judges still use the prudential Baker factors to dispose of cases under the political question doctrine, notwithstanding Zivotofsky I.

In a few of the cases applying the prudential factors, the court has still found no political question (e.g., Ralls; Simon). The prudential considerations definitely still have real bite in some places though (e.g., Saldana). The Fourth Circuit seems to have come down most strongly in favor of a still-expansive political question doctrine. But that may reflect the facts at issue. Several of its cases applied a line of pre–Zivotofsky I precedent specific to suits against private military contractors (Taylor) that incorporated Baker’s prudential factors (the same line of precedent the district court applied in CACI that Steve criticized). Only seven of the decisions I list (fewer than half) even cite Zivotofsky I at all. The one decision ignoring the prudential factors and the two ambivalent about them all cite Zivotofsky I. Four of the eight cases giving the prudential factors significant weight do not cite Zivotofsky I. And no majority opinion has explicitly held that Zivotofsky I eliminated the prudential factors, though a few concurrences seem to point in that direction (see, e.g., Judge Krause’s concurrence in In re One2One Communications, LLC).

Why haven’t lower courts taken notice of Zivotofsky I? Three possibilities jump out. First, maybe Zivotofsky I, properly read, didn’t curtail Baker. Perhaps the Court wanted jurisdiction over that case specifically. Two successive Presidents had disregarded the law at issue, after all. That seems to demand judicial review, especially since the President and Congress had seemed to reach what Justice Powell described in a related context in Goldwater v. Carter as “a constitutional impasse.” Alternatively, maybe the presence of a statutory right made a difference. Any appellate court believing any of these preceding explanations might think it proper to stick to its old tests.

Second, lower courts may have an interest in continuing to rely on the prudential factors until told explicitly to jettison them. The prudential factors help courts avoid deciding a case that involves difficult-to-adjudicate facts, implicates high-stakes foreign policy problems, or threatens for some reason to make bad law. The Supreme Court has other ways of shielding itself from such problems. If it thinks the case presents such problems, for example, it needn’t grant certiorari. But lower courts lack the discretion to avoid an appeal and thus might want to maintain other “passive virtue” tools. This explanation coheres with Curtis Bradley’s observation that the political question doctrine historically “has had a more vibrant life in the lower courts . . . than in the Supreme Court.”

Third, appellate court judges may just stick to the issues as briefed. In at least four of the eight cases in which the panel used the Baker prudential factors (In re KBR; CACI (2014); Ralls; Simon), no party argued urged the court to jettison the prudential factors following Zivotofsky I (Saldana may be a fifth, but the opening brief is unavailable online). I don’t think this reflects a conscious legal strategy to ask for less extreme relief. In the first three of those cases (and as best I can tell Saldana too), the parties didn’t cite Zivotofsky I at all.

Steve thinks a decision in CACI that affirms the district court judge’s expansive interpretation of the political question doctrine “will be either en banc-worthy, cert.-worthy, or both.” I think any decision devoting significant attention to the political question doctrine would be. A holding that adopts Steve’s interpretation of the political question doctrine would make the Fourth Circuit stand out among the courts of appeals. Perhaps this issue will not prompt further review if some version of my second explanation is right, and the Supreme Court wants to give appellate courts more tools to avoid awkward decisions. If the judiciary finds plausible Jack’s arguments that Zivotofsky II may have enabled expansive interpretations of executive power within the executive branch, they might have plenty of reasons to duck the apparent Supreme Court–lower court inconsistency as long as they can.

Appendix: Summary of Cases

(* indicates that the majority cited Zivotofsky I)

Did not include prudential factors

DC Circuit

Hourani v. Mirtchev (2015) (used Zivotofsky I’s limited understanding of the political question doctrine and in a case alleging extortion by an American company in coordination with the Kazakhstani government).*

Included prudential factors

3d Circuit

Harris v. Kellogg Brown & Root Services, Inc. (3d Cir. 2013) (thought all six Baker factors required it to dispose of the case if it would have to sit in judgment of U.S. military decisions).*

4th Circuit

In re KBR, Inc., Burn Pit Litigation (2014) (applied pre-Zivotofsky I Taylor test relevant to military contractors that distilled all six Baker factors).

Al-Shimari v. CACI Premier Technology, Inc. (2014) (same as In re KBR; confirmed that Taylor represented a distillation of all six Baker factors).

Wu Tien Li-Shou v. United States (2015) (applied all six Baker factors in lawsuit against U.S. for allegedly illegal conduct in a NATO anti-piracy mission, cited some prudential concerns, but seemed to ground its analysis in the textual commitment and judicially manageable standards prongs).

9th Circuit

Saldana v. Occidental Petroleum Corp. (2014) (per curiam) (fourth, fifth, and sixth prudential Baker factors require disposal because the case would force the court to second-guess U.S. support for Colombia, even though the United States was not a named defendant in the case).

10th Circuit

Kerr v. Hickenlooper (2014) (considered all six Baker factors relevant, but it quickly dispensed with the last three prudential factors — possibly because challenge involved the Guarantee Clause, not foreign policy).*

DC Circuit

Ralls Corp. v. Committee on Foreign Inv. in U.S. (2014) (considered Baker’s prudential factors still relevant to its analysis, and claimed that the presence of just one Baker factor was sufficient to divorce the Court of jurisdiction).*

Simon v. Republic of Hungary (2016) (treated all six Baker factors as relevant and went through each one carefully, while acknowledging that the doctrine is “a narrow exception”).*

Considered but discounted prudential factors

4th Circuit

N.L.R.B. v. New Vista Nursing and Rehabilitation (2013) (considered all six factors, but treated first two more seriously, echoing Sotomayor concurrence)*

5th Circuit

FH-T v. Holder (2013) (suggests, implicitly, prudential considerations matter less if the plaintiff claims one branch encroached on another’s authority)*

Silent

2d Circuit

United States v. Westchester County, N.Y. (2013) (noting that the Guarantee Clause presents a political question).

3d Circuit

Hawk-Bey v. United States (2012) (first Baker prong implicated, so didn’t address other factors).

LaVergne v. Bryson (2012) (treating apportionment as a political question without mentioning any Baker factors).

Bell v. Cheswick Generating Station (2013) (didn’t address in detail because issue was frivolous).

4th Circuit

Martin v. Obama, (2012) (per curiam) (affirmance without analysis, but district court applied all Baker factors).

N.L.R.B. v Enterprise Leasing Co. Southeast L.L.C. (2013) (only briefly discussed political question, but cited to Baker, not Zivotofsky I).

Wright v. North Carolina (2015) (opinion confined to political gerrymandering as an issue and did not address any Baker factors).

5th Circuit

Texas v. United States (2015) (summarily dismissed an expansive political question argument)

9th Circuit

Lu v. Central Bank of Republic of China (considered recognition power to be political question under exclusive control of executive branch, consistent with Zivotofsky II).

11th Circuit

Meza v. U.S. Atty. Gen. (2012) (whether a treaty is still in force is a political question; did not apply any Baker factors).

DC Circuit

de Csepel v. Republic of Hungary (2013) (rejected a political question argument without getting into Baker or Zivotofsky I because the defendant’s argument rested on a faulty premise about the plaintiff’s allegation).