Is the U.S. Supreme Court searching for an "off-ramp," or a way to avoid deciding the legal and highly politicized battle over the financial records of President Donald Trump?
Less than two weeks before hearing arguments in a pair of cases challenging the authority of U.S. House investigating committees to subpoena the records from three of President Trump's banks, the Justices injected a surprising wrinkle into the cases.
On Monday, they ordered lawyers for the House committees, Trump, and the U.S. Department of Justice to file new briefs on whether the political question doctrine or related principles governing when federal courts must abstain from ruling have a bearing on the Trump cases.
The order was surprising because the political question doctrine was not a focus of the lower court decisions—all of which went against Trump—and it hasn't been a feature of the arguments thus far in the main briefs in the Supreme Court. The Justices' request could mean nothing. Perhaps a single Justice is interested in how the doctrine may apply, if at all. It also could be significant as two recent Supreme Court decisions show that the restraints on our federal courts' authority to decide cases are very much in the forefront of the Justices' minds.
But first, a brief primer on the political question doctrine and related "justiciability" principles. Article III of the Constitution defines the jurisdiction of our federal courts, including the Supreme Court, as deciding "Cases" and "Controversies." Over the years, the Supreme Court has said certain legal doctrines that flow from Article III limit or restrict federal courts' authority to decide cases or controversies. Those doctrines reflect concern and respect for the Constitution's separation of powers and the proper role of the courts within that division of powers.
The political question doctrine, in particular, is rooted in respect for the separation of powers. Under that doctrine, a court is counseled to stay its hand if the issue before it is more properly resolved by the political (executive or legislative) branches. Other justiciability doctrines limiting the courts include mootness (there is no longer a live controversy), standing to be in court (do you have a concrete injury that a court can remedy?), and ripeness (there is no actual controversy or threat of injury yet).
An example of mootness came just this week when the Supreme Court dismissed its first major Second Amendment challenge in a decade. The challengers claimed that New York City's ordinance restricting the transport of locked and unloaded firearms to points within the city's boundaries violated the Second Amendment and other parts of the Constitution. After the Supreme Court agreed to decide the challenge, the city lifted the restrictions by amending the ordinance and the state enacted a law reinforcing the city's new approach.
The Justices, in an unsigned opinion, said the case was moot because there was no longer a live controversy. The challengers had received the relief that they sought because of the amended ordinance, according to the court. Three Justices dissented.
The Justices also have had recent experience relying on the political question doctrine. Last year, a bitterly divided court declined to decide whether excessive partisanship in the drafting of redistricting maps in North Carolina and Maryland violated the Constitution. In an opinion for the five-justice conservative majority, Chief Justice John Roberts Jr. wrote that the cases presented a political question because there were no manageable standards that judges could use to decide when partisanship has so infected the redistricting process that it runs afoul of the Constitution.
Roberts explained the political question doctrine in this way: "Chief Justice Marshall famously wrote that it is 'the province and duty of the judicial department to say what the law is.' (Marbury v. Madison, 1803) Sometimes, however, 'the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.'
"In such a case the claim is said to present a 'political question' and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction," he wrote. "No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority."
The lack of legal or manageable standards to guide a federal court in weighing a case or controversy is one of six situations that could present a political question, according to the Supreme Court in its 1962 landmark decision in Baker v. Carr. Without listing all six, some of the others, according to that decision, include: "a textually demonstrable constitutional commitment of the issue to a coordinate political department; an unusual need for unquestioning adherence to a political decision already made, or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."
The political question doctrine frequently has figured in cases involving the foreign policy interests of the United States and the Justices have not been reluctant to defer to the executive branch in those situations.
Despite its deep roots in the separation of powers, the political question doctrine is still controversial and often divisive in its application—as witnessed in the North Carolina and Maryland partisan gerrymander cases. How it may relate to the Trump cases remains to be seen.
In the Trump cases, the Justices are asked if three House investigating committees had constitutional and statutory authority to issue subpoenas to the banks for the financial records of a sitting president. Trump's personal lawyers argue that the cases do raise separation-of-powers issues. "Whether Congress is empowered to subpoena the President’s personal records—at all—in aid of legislation and, if it is, whether these subpoenas exceed that authority are exactly the kind of inter-branch disputes the Court should avoid resolving until Congress has made clear that it understands the stakes and is prepared for judicial resolution," his lawyers argue in their briefs.
Lawyers for the House committees disagree: "Many momentous separation-of-powers disputes have come before this Court," they write in their briefs. "This dispute, regarding four document subpoenas to third parties for records not covered by any privilege, is not one of them."
During arguments last year in the North Carolina and Maryland redistricting cases, the Chief Justice made a revealing comment. He voiced concern for the reputation and integrity of the institution of the Supreme Court if the Justices decided those cases and future cases like them. A decision, he said, would be, in effect, a no-win situation for the court because the Justices would be accused by the average guy of playing politics if their decisions favored Republicans or Democrats.
That concern for the standing of the institution in the public's eyes is undoubtedly in the Justices' minds and perhaps is heightened by the hyper-partisan environment surrounding the Trump cases. Applying the political question doctrine would remove the Supreme Court from this battle. It also could be a defeat for Trump because without a favorable ruling from the Justices, he could not stop his banks from releasing the records-- which they have indicated a willingness to do. And it would be a huge loss for Congress and its ability to enforce investigative subpoenas against those who refuse to comply.
The Justices will hold telephonic arguments in the bank records cases on May 12. Those arguments and the Justices' questions may offer clues on how significant a role the political question doctrine may play in the outcome of this power struggle.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
