What Does "a political question" Mean in a Federal Court?

(added January 20, 2012 -- given to public domain by the author)

Click below to see a PDF file of The Case Against a President's War [1968-2012]

The Case Against a (President's War) . You can print a copy for yourself.

Or search for the six-minute video "The Empire is Not the Nation" [channel: primacycinema] on (YouTube) .

What does it mean for a federal court to dismiss a complaint on the grounds that it is a "political question"? In the draft cases, such as Medeiros vs. United States, it means that the complaint raises issues pertinent to the distribution of powers -- legislative, executive and judicial -- and the court cannot exercise jurisdiction because it would have to interfere with the legislative process or political process in order to do so. Consider that at the time the content of the Case Against a President's War (1968) was used to argue in a federal court -- that drafting a citizen in order to back a foreign policy with military force deprived a citizen of due process. The Court could not protect the life, liberty and property of that citizen except by ruling that using the draft for that purpose was contrary to the constitutional guarantee of due process. That would mean, while the brutally violent and controversial military action was in process, the court would be saying that every American soldier who had been drafted to serve in that war (in Vietnam) was not legally conscripted. No federal court could possibly do that in 1968 without creating the greatest political crisis in American history. No federal court could engage in deliberation of this argument and render a decision. Every constitutional lawyer and judge knew then and knows now that when the Constitution was adopted in 1787 both the framers of the Constitution and the colonial voters who supported it, were totally opposed to a standing army and giving the executive branch of government the power to engage in war on executive authority. Any Supreme Court Justice today, especially those who like to call themselves "strict constructionists" or "originalists" could not possibly document legal arguments to defend the concept that the President has the power to conscript an army in order to back his foreign policy. Foreign policy is different from the nation being in a state of war with another nation. How could any citizen be safe if the President could say he (or she) is going to draft citizens to build an army because we have to fight Pirates of the Caribbean, or Warriors of the Congo, or The Mongolian Sons of Khan, or the Revolutionary Inuit Seal Hunters. Or, for that matter, the drug cartels of Mexico. Regardless of the American over-use of the slogan that we are "having a war on" this or that, a "war on drugs" or "war on poverty" or "war on irresponsible sex" or "war on terrorists," however real is the threat that a destructive act may be perpetrated by an angry group, that is not our nation at war with another nation, which only the Congress can declare. In this case, the word "declare" carries great import and very specific import. It means that we are at war and the reason we are at war is because the sovereign authority says that we are, and that sovereign authority is the only authority in the world who has the legal power and right to say that the people of the United States of America are in a state of war with another nation. This means that if a citizen is drafted, they must be drafted for military service by the sovereign and not by any other authority. This legal argument has merit.

What evidence is there that lawyers, judges and elected officials secretly agree with this legal argument? No one has been drafted since Vietnam. The wars in Kuwait (1990) and Iraq and in Afghanistan were conducted without drafting anyone. And, during the long wars in both Iraq (2003) and Afghanistan, soldiers serving in the National Guard were sent into the battlefield two or three times, and mercenaries were hired in order to perform many of the functions that we normally expect to be accomplished by members of our Armed Forces. Why the repeated tours of duty and hired mercenaries when the government could have drafted unemployed young adults and saved billions of dollars? Because they know that even citizens who cannot articulate what is articulated here have a deep sense that it is wrong. They know that our children should not be sent to their deaths in military service except when the sovereign, the Congress, says (declares) we are at war with another nation.

Reliable sources

Wikipedia (political question doctrine) says that " it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. the court system only has authority to hear and decide a legal question, not a political question. the issue is to be decided through the democratic process. The court will not engage in political disputes."

Cornell University Legal Information Institute says: " the Court has held that the conduct of foreign relations is the sole responsibility of the executive branch [the President], and cases challenging the way the executive is using that power present political questions."

And there is more, but we still have a rational legal basis for the argument presented in The Case Against a President's War. Note that a respected Legal Information Institute says that the courts have held that the conduct of foreign relations is the sole responsibility of the executive branch. This clearly establishes that if there is a foreign policy war, if the President wants to back up his foreign policy with armed force, anyone drafted into that armed force has been drafted by the President and not by the Congress. That's the argument.

I believe that the World Oil Empire, who have been using the Armed Forces of the United States since the 1960s to protect their control over a global economy, and to resist all of the environmental and economic reasons why the oil industry should be phased out of existence, will soon try again. During the War in Vietnam, there were reports that the real reason for that war was because the United States wanted to exercise control over oil and other mineral resources in the South China Sea (250 islands). In January of 2012, I read a news story that Japan and China are in a serious dispute over access to these same resources (Spratly Islands). [Also see "South China Sea," BBC 11/18/2011]. The Empire will soon try again to use conscription to provide the forces they need for the next foreign policy war. To defend democracy, we may need to defend our access to natural resources, but we need to be honest about what we are doing and not constantly claim that we are liberating the world. The people who are killed or maimed in a foreign policy war are not liberated. We drive our cars on oil -- and on blood.

(John M. Medeiros, January 20, 2012)

Link to: (Welcome) page or JMM Six at (Case APW) page.

Click below to see a PDF file of The Case Against a President's War [1968-2012]

The Case Against a (President's War) . You can print a copy for yourself.

Or search for the six-minute video "The Empire is Not the Nation" [channel: primacycinema] on (YouTube) .