SCOTX Wades Into The Political-Question Doctrine

SCOTX Wades Into The Political-Question Doctrine - Chad Baruch
Few lawyers remember much about the political-question doctrine beyond what they learned during their first year of law school. On the rare occasions that the doctrine is litigated, it usually occurs in a federal court rather than the state-court system.

But in a rare exception to the mine run of cases involving the political-question doctrine, the Supreme Court of Texas confronted it squarely in American K-9 Detection Services, LLC v. Freeman, 556 S.W.3d 246 (Tex. 2018). There, a civilian employed by a private military contractor was stationed at a U.S. Army base in Afghanistan. The base was a secured military position supporting tactical combat operations in a war zone. The camp also was home to a number of explosive-detection dogs provided by private contractors to the Army to sniff for IEDs. One of the dogs managed to escape her kennel and inflicted serious injuries on the civilian employee (this was unintentional; the dog actually was playing with the employee but jumped against her so forcefully that it snapped to the employee’s jaw). The employee sued the dog’s owner, which asserted the political-question doctrine in defense.

Beginning with Marbury v. Madison, American courts have recognized that certain questions are so inherently political as to be beyond the power of the judicial branch to decide. The U.S. Supreme Court discussed the doctrine in its landmark decision in Baker v. Carr. There, the court laid down six tests for identifying when an issue exceeds a court’s power to decide. Among these are a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it.

In American K-9, the Texas Supreme Court held the claims at issue fell squarely within the political-question doctrine. The court noted that the Army’s decisions about designing and constructing the dog kennels on a military base in a war zone went to the heart of the equipping of the military—a decision constitutionally committed to the federal political branches. To illustrate the point, the court noted that the kennel tops might have been left off to allow the dogs to escape in the event of an attack, or to conserve material resources for other, more important structures to the war effort. Whatever the reasoning, the court held that it was squarely within the Army’s decision-making authority. As a result, the case presented a non-justiciable political question.