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The Power of Judicial Review

The following is a guest post by Janeen Williams, a Legal Reference Specialist with the Public Services Division of the Law Library of Congress.

The federal judiciary has the authority to review actions of the legislative and executive branches to verify that they comport with the Constitution see Marbury v. Madison). However, judicial review does not extend to all issues. A case is justiciable if it is the type of dispute that a court can properly adjudicate. Justiciability is determined by examining a variety of factors or requirements. One factor that determines justiciability is the subject or issue at the heart of the dispute. The dispute must be an actual case or controversy between two adverse parties in order to be justiciable.

The “Political Question Doctrine” is another justiciability factor.  Political questions are non-justiciable because Congress and the executive branch, or the political branches, are in a better position to resolve question that are political in nature. Historically, the judiciary has deemed disputes that are political and require examination of powers given to the other branches by the Constitution to be outside the realm of judicial review.

The modern political question doctrine first emerged in Baker v. Carr, which was decided in the early 1960s.  The Court in Baker established a six-factor test to determine if the issue in question in a controversy is a political question. A podcast episode from Radiolab’s More Perfect takes a deep dive into the Baker case and its lasting implications.

Courthouse, Wilmington, North Carolina. Photograph by Carol Highsmith. (Created February 2013). Library of Congress Prints and Photographs Division, hdl.loc.gov/loc.pnp/highsm.24613

Courthouse, Wilmington, North Carolina. Photograph by Carol Highsmith. (Created February 2013). Library of Congress Prints and Photographs Division, hdl.loc.gov/loc.pnp/highsm.24613

A more recent example of the application of the doctrine involved litigation over burn pits, which were used as a method of waste disposal on U.S. military sites in Iraq and Afghanistan. They are open air pits in which waste generated on military operational bases was burned. In Metzgar v. KBR, Inc., the Army had awarded KBR (Kellogg, Brown & Root Services, Inc.) a contact to manage waste and provide other services on operating bases in Iraq and Afghanistan.  Soldiers filed suit against KBR because they claimed they had been exposed to toxins when KBR burned waste to dispose of it. The United States District Court for the District of Maryland found that the decision to use burn pits was made by the military.  Additionally, they found that the military decided where to place the burn pits and how to operate them.

The U.S. Court of Appeals for the Fourth Circuit stated that political questions are not justiciable because the legislative and executive branches are better suited to resolve political questions. The Fourth Circuit has held that military decisions are not appropriate for judicial review because the Constitution grants control over military affairs to the legislative and executive branches.  See Further, military contractors, like KBR, are able to use the political question doctrine to avoid liability if the military applied “direct control” over the contractors. To determine if the military exercised direct control in this instance, the Fourth Circuit applied a two-factor test looking for: 1) plenary control, and 2) actual control. The military could be said to have exercised direct control over the contractor if the military exercised both plenary and actual control over the contractor, and if both plenary and actual control were exercised, the political question shield would be available. Plenary control is exhibited when the military selects the method in which the activities or tasks will be completed. Actual control is exemplified when contractors fall within an official military command structure and those contractors are engaged in a lawful activity.

The Fourth Circuit affirmed the lower court’s findings that KBR had little discretion over how to operate the burn pits. Thus, the military had plenary control. Additionally, the military had regular interaction with KBR and oversaw their activities.  For those reasons, the court held that the military also had actual control over KBR. Since the military exercised direct control over KBR, the Fourth Circuit affirmed the district court’s decision that the case was non-justiciable because military decisions fall under the political question doctrine.

A petition for writ of certiorari was filed in the United States Supreme Court on September 7, 2018. The petition was denied in January 2019.

The following resources may be helpful if you are interested in learning more about the Political Question Doctrine.

To identify additional sources, please visit the Library of Congress online catalog or submit questions through the “Ask a Librarian” feature.

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