444 U.S. 996 (1979), 79-856, Goldwater v. Carter

Docket Nº:No. 79-856
Citation:444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428
Party Name:Goldwater v. Carter
Case Date:December 13, 1979
Court:United States Supreme Court

Page 996

444 U.S. 996 (1979)

100 S.Ct. 533, 62 L.Ed.2d 428




No. 79-856

United States Supreme Court

December 13, 1979




The petition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to dismiss the complaint.

POWELL, J., concurring

MR. JUSTICE POWELL, concurring.

Although I agree with the result reached by the Court, I would dismiss the complaint as not ripe for judicial review.


This Court has recognized that an issue should not be decided if it is not ripe for judicial review. Buckley v. Valeo, 424 U.S. 1, 113-114 (1976) (per curiam). Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Differences between the President and the Congress are commonplace under our system. The differences should, and almost invariably do, turn on political, rather than legal, considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups, or even individual Members, of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.

MR. JUSTICE MARSHALL concurs in the result.

MR. JUSTICE POWELL concurs in the judgment,

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and has filed a statement.

MR. JUSTICE REHNQUIST concurs in the judgment and has filed a statement in which MR. CHIEF JUSTICE BURGER, MR. JUSTICE STEWART, and MR. JUSTICE STEVENS join.

MR. JUSTICE WHITE and MR. JUSTICE BLACKMUN join in the grant of the petition for a writ of certiorari, but would set the case for argument and give it plenary consideration. MR. JUSTICE BLACKMUN has filed a statement in which MR. JUSTICE WHITE joins.

MR. JUSTICE BRENNAN would grant the petition for certiorari and affirm the judgment of the Court of Appeals, and has filed a statement.

POWELL, J., concurring

MR. JUSTICE POWELL, concurring.

In this case, a few Members of Congress claim that the President's action in terminating the treaty with Taiwan has deprived them of their constitutional role with respect to

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a change in the supreme law of the land. Congress has taken no official action. In the present posture of this case, we do not know whether there ever will be an actual confrontation between the Legislative and Executive Branches. Although the Senate has considered a resolution declaring that Senate approval is necessary for the termination of any mutual defense treaty, see 125 Cong.Rec. S7015, S7038-S7039 (June 6, 1979), no final vote has been taken on the resolution. See id. at S16683-S16692 (Nov. 15, 1979). Moreover, it is unclear whether the resolution would have retroactive effect. See id. at S7054-S7064 (June 6, 1979); id. at S7862 (June 18, 1979). It cannot be said that either the Senate or the House has rejected the President's claim. If the Congress chooses not to confront the President, it is not our task to do so. I therefore concur in the dismissal of this case.


MR. JUSTICE REHNQUIST suggests, however, that the issue presented by this case is a nonjusticiable political question which can never be considered by this Court. I cannot agree. In my view, reliance upon the political question doctrine is inconsistent with our precedents. As set forth in the seminal case of Baker v. Carr, 369 U.S. 186, 217 (1962), the doctrine incorporates three inquiries: (i) does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) do prudential considerations counsel against judicial intervention? In my opinion the answer to each of these inquiries would require us to decide this case if it were ready for review.

First, the existence of "a textually demonstrable constitutional commitment of the issue to a coordinate political department," ibid., turns on an examination of the constitutional provisions governing the exercise of the power in question.

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Powell v. McCormack, 395 U.S. 486, 519 (1969). No constitutional provision explicitly confers upon the President the power to terminate treaties. Further, Art. II, § 2, of the Constitution authorizes the President to make treaties with the advice and consent of the Senate. Article VI provides that treaties shall be a part of the supreme law of the land. These provisions add support to the view that the text of the Constitution does not unquestionably commit the power to terminate [100 S.Ct. 535] treaties to the President alone. Cf. Gilligan v. Morgan, 413 U.S. 1, 6 (1973); Luther v. Borden, 7 How. 1, 42 (1849).

Second, there is no "lack of judicially discoverable and manageable standards for resolving" this case; nor is a decision impossible "without an initial policy determination of a kind clearly for nonjudicial discretion." Baker v. Carr, supra, at 217. We are asked to decide whether the President may terminate a treaty under the Constitution without congressional approval. Resolution of the question may not be easy, but it only requires us to apply normal principles of interpretation to the constitutional provisions at issue. See Powell v. McCormack, supra, at 548-549. The present case involves neither review of the President's activities as Commander in Chief nor impermissible interference in the field of foreign affairs. Such a case would arise if we were asked to decide, for example, whether a treaty required the President to order troops into a foreign country. But "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, supra, at 211. This case "touches" foreign relations, but the question presented to us concerns only the constitutional division of power between Congress and the President.

A simple hypothetical demonstrates the confusion that I find inherent in MR. JUSTICE REHNQUIST's opinion concurring in the judgment. Assume that the President signed a mutual defense treaty with a foreign country and announced that it

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would go into effect despite its rejection by the Senate. Under MR. JUSTICE REHNQUIST's analysis, that situation would present a political question even though Art. II, § 2, clearly would resolve the dispute. Although the answer to the hypothetical case seems self-evident because it demands textual, rather than interstitial, analysis, the nature of the legal issue presented is no different from the issue presented in the case before us. In both cases, the Court would interpret the Constitution to decide whether congressional approval is necessary to give a Presidential decision on the validity of a treaty the force of law. Such an inquiry demands no special competence or information beyond the reach of the Judiciary. Cf. Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).1

Finally, the political question doctrine rests in part on prudential concerns calling for mutual respect among the three branches of Government. Thus, the Judicial Branch should avoid "the potentiality of embarrassment [that would result] from multifarious pronouncements by various departments on one question." Similarly, the doctrine restrains judicial action where there is an "unusual need for unquestioning adherence to a political decision already made." Baker v. Carr, supra, at 217.

[100 S.Ct. 536] If this case were ripe for judicial review, see Part I supra, none of these prudential considerations would be present.

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Interpretation of the Constitution does not imply lack of respect for a coordinate branch. Powell v. McCormack, supra, at 548. If the President and the Congress had reached irreconcilable positions, final disposition of the question presented by this case would eliminate, rather than create, multiple constitutional interpretations. The specter of the Federal Government brought to a halt because of the mutual intransigence of the President and the Congress would require this Court to provide a resolution pursuant to our duty "`to say what the law is.'" United States v. Nixon, 418 U.S. 683, 703 (1974), quoting Marbury v. Madison, 1 Cranch 137, 177 (1803).


In my view, the suggestion that this case presents a political question is incompatible with this Court's willingness on previous occasions to decide whether one branch of our Government has impinged upon the power of another. See Buckley v. Valeo, 424 U.S. at 138; United States v. Nixon, supra, at 707; The Pocket Veto Case, 279 U.S. 655, 676-678 (1929); Myers v. United States, 272 U.S. 52 (1926).2 Under the

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criteria enunciated in Baker v. Carr, we have the responsibility to decide whether both the Executive and Legislative Branches have constitutional roles to play in termination of a treaty. If the Congress, by appropriate formal action, had challenged the President's authority to terminate the treaty with Taiwan, the resulting uncertainty could have serious consequences for our country. In that situation, it would be the duty of this Court to resolve the issue.

REHNQUIST, J., concurring

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE STEVENS join, concurring in the judgment.

I am of the view that the basic question presented by the petitioners in this case is "political," and therefore nonjusticiable because it...

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