Section Three: An Inapplicable “Political Question”

This is the seventh essay in a series responding to objections to enforcing Section Three of the Constitution. Questions have been raised about whether the legal interpretation of Section Three poses nonjusticiable “political questions” that federal courts lack authority to decide. The simple answer is no. The Constitution’s text does not give Section Three issues to the political branches of the national government. Interpreting Section Three involves standard questions of text, structure, and history of the Constitution. This is something courts do regularly, and nothing about it requires them to make political policy judgments. The courts have identified relevant factors for nonjusticiable political questions, none of which applies to Section Three issues. Colorado courts found Section Three justiciable in Trump v. Anderson litigation. The Court’s “political question” doctrine does not cover Section Three. The Constitution does not give exclusive political power over Section Three to Congress. Congress can remove a disqualification imposed by Section Three, but has no discretion over whether a disqualification exists. Congress’s power to “enforce” Section Three and other amendments does not create a political question. The Twelfth Amendment does not commit Section Three questions to Congress. Section Three does not lack judicially discernible and manageable standards for resolving issues. It presents classic issues of legal interpretation that courts are capable of deciding. Even if the political question doctrine extends beyond these considerations, interpreting and applying Section Three does not implicate other factors that would make it a nonjusticiable political question.