political question doctrine in Texas

2018In Harris v. Kellogg Brown & Root Services, Inc. , the Third Circuit held that a sole-proximate-cause defense would not implicate the political-question doctrine because that dispute is "simply about who did what." 724 F.3d 458 , 473 (3d Cir. 2013).

2018However, ... we cannot say at this point that [the] negligence claims necessarily implicate the political question doctrine."); McMahon v. Presidential Airways, Inc. , 502 F.3d 1331 , 1362 (11th Cir. 2007) ("At this early stage of the litigation, we therefore cannot say it is evident that McMahon's suit will call into question decisions made by the military, must less the kind of military decisions that might be insulated by the political question doctrine."); see also Harris v. Kellogg, Brown & Root Servs., Inc. , 724 F.3d 458 , 469 (3d Cir. 2013) ("If there is sufficient evidence to support

2023However, as stated in Baker, the political question doctrine “is one of ‘political questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.” Id.

2022II, § 2. 9 5 U.S. (1 Cranch) 137, 166, 177 (1803). 6 examinable.” 10 Thus, as a matter of separation of federal power, the Judicial Branch has declined to review military action “intended by the Constitution to be left to the political branches directly responsible . . . to the electoral process.” 11 The political question doctrine insulates decisions constitutionally committed to the other branches from judicial second-guessing. 12 The Supreme Court examined the contours of the federal political question doctrine in Baker v. Carr. 13 In rejecting the argument that the congressional apportionm

2018We therefore cannot determine whether the military control factor renders this cause nonjusticiable at this time."); Lane v. Halliburton , 529 F.3d 548 , 567 (5th Cir. 2008) ("The Plaintiffs' negligence allegations move precariously close to implicating the political question doctrine, and further factual development very well may demonstrate that the claims are barred.

2018We therefore cannot determine whether the military control factor renders this cause nonjusticiable at this time.”); Lane v. Halliburton, 529 F.3d 548, 567 (5th Cir. 2008) (“The Plaintiffs’ negligence allegations move precariously close to implicating the political question doctrine, and further factual development very well may demonstrate that the claims are barred.

2018However, ... we cannot say at this point that [the] negligence claims necessarily implicate the political question doctrine."); McMahon v. Presidential Airways, Inc. , 502 F.3d 1331 , 1362 (11th Cir. 2007) ("At this early stage of the litigation, we therefore cannot say it is evident that McMahon's suit will call into question decisions made by the military, must less the kind of military decisions that might be insulated by the political question doctrine."); see also Harris v. Kellogg, Brown & Root Servs., Inc. , 724 F.3d 458 , 469 (3d Cir. 2013) ("If there is sufficient evidence to support

2018The court shall grant the motion to strike unless a defendant produces sufficient political question doctrine.”); McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1362 (11th Cir. 2007) (“At this early stage of the litigation, we therefore cannot say it is evident that McMahon’s suit will call into question decisions made by the military, must less the kind of military decisions that might be insulated by the political question doctrine.”); see also Harris v. Kellogg, Brown & Root Servs., Inc., 724 F.3d 458, 469 (3d Cir. 2013) (“If there is sufficient evidence to support the defense, then

2022II, § 2. 9 5 U.S. (1 Cranch) 137, 166, 177 (1803). 6 examinable.” 10 Thus, as a matter of separation of federal power, the Judicial Branch has declined to review military action “intended by the Constitution to be left to the political branches directly responsible . . . to the electoral process.” 11 The political question doctrine insulates decisions constitutionally committed to the other branches from judicial second-guessing. 12 The Supreme Court examined the contours of the federal political question doctrine in Baker v. Carr. 13 In rejecting the argument that the congressional apportionm

2020Carmichael itself cited Gilligan v. Morgan, 413 U.S. 1 , 93 S. Ct. 2440 (1973), where the Supreme Court held that the political question doctrine barred claims relating to the training, equipping, and control with respect to the domestic operations of the Ohio National Guard.

2020In K-9, the Texas Supreme Court examined the political question doctrine, which “teaches that the Judicial Branch will abstain from matters committed by constitution and law to the Executive and Legislative Branches.” K-9, 556 S.W.3d at 249 .

2020While the court noted that not all cases involving the military are foreclosed by the political question doctrine, it emphasized that each case requires a “discriminating analysis of the particular question posed,” and the political question must be “inextricable from the case.” Id. at 255 (quoting Baker, 369 U.S. at 211–212, 217, 82 S. Ct. at 707, 710 ).

2022Cetacean Soc., 478 U.S. 221, 230 (1986). 2 Am.

2022II, § 2. 9 5 U.S. (1 Cranch) 137, 166, 177 (1803). 6 examinable.” 10 Thus, as a matter of separation of federal power, the Judicial Branch has declined to review military action “intended by the Constitution to be left to the political branches directly responsible . . . to the electoral process.” 11 The political question doctrine insulates decisions constitutionally committed to the other branches from judicial second-guessing. 12 The Supreme Court examined the contours of the federal political question doctrine in Baker v. Carr. 13 In rejecting the argument that the congressional apportionm

2018Dist. v. Clark, 544 S.W.3d 755, 770-71 (Tex. 2018); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). 14 Ante at 20. 15 See Miranda, 133 S.W.3d at 227 . 16 Cf. id. at 224-25, 231-32 (evaluating affirmative evidence that the governmental entity was not grossly negligent). 17 See Alamo, 544 S.W.3d at 770 ; Miranda, 133 S.W.3d at 232 . 18 See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015). 5 The Court handwaves established procedure, saying fealty to our precedent would reduce the political question doctrine “to an irrelevance.”19 But this is little

2018Dist. v. Clark, 544 S.W.3d 755, 770-71 (Tex. 2018); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). 14 Ante at 20. 15 See Miranda, 133 S.W.3d at 227 . 16 Cf. id. at 224-25, 231-32 (evaluating affirmative evidence that the governmental entity was not grossly negligent). 17 See Alamo, 544 S.W.3d at 770 ; Miranda, 133 S.W.3d at 232 . 18 See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015). 5 The Court handwaves established procedure, saying fealty to our precedent would reduce the political question doctrine “to an irrelevance.”19 But this is little

2018In In re Hooker, 87 So. 3d 401, 404 (Miss. 2012), the court borrowed from federal jurisprudence to analyze a case implicating the separation of powers within the Mississippi government, that is, between the Mississippi 10 Not all cases involving the military are foreclosed by the political question doctrine.34 Ordinary tort suits, for example, may be within the competence of a court to decide, even when touching on military matters,35 but not when “[t]he interjection of tort law into the realms of . . . military affairs would effectively permit judicial reappraisal of judgments the Constitutio

2018In In re Hooker, 87 So. 3d 401, 404 (Miss. 2012), the court borrowed from federal jurisprudence to analyze a case implicating the separation of powers within the Mississippi government, that is, between the Mississippi 10 Not all cases involving the military are foreclosed by the political question doctrine.34 Ordinary tort suits, for example, may be within the competence of a court to decide, even when touching on military matters,35 but not when “[t]he interjection of tort law into the realms of . . . military affairs would effectively permit judicial reappraisal of judgments the Constitutio

2018The fact-finder cannot decide the respective degrees of fault as between a military contractor . . . and the military without evaluating the decisions made by each”.57 In the latter situation, the court concluded that “[e]liminating the plaintiff[’s] claims for [those] damages [was] the appropriate solution”.58 53 Harris, 724 F.3d at 474 ; cf. Fisher v. Halliburton, 667 F.3d 602, 621 (5th Cir. 2012) (“Whether this case presents a nonjusticiable political question is a significant issue, particularly since [the contractor] sought to have the role of the United States considered under section 33

2015In fact, a subsequent Fifth Circuit decision recognized that, when the military is designated as a responsible third party under Texas’s proportionate-responsibility scheme, the political-question doctrine is “a significant issue.” Fisher, 667 F.3d at 621 ; see also McManaway, 554 Fed.

2018In In re Hooker , 87 So.3d 401 , 404 (Miss. 2012), the court borrowed from federal jurisprudence to analyze a case implicating the separation of powers within the Mississippi government, that is, between the Mississippi governor and judiciary, because its "state government was modeled after the federal system." In Ghane , the court applied the doctrine to a tort claim involving military decisions and a private military contractor, noting that it had "adopted the political question doctrine in [ Hooker ]." 137 So.3d at 217 .

2018In In re Hooker, 87 So. 3d 401, 404 (Miss. 2012), the court borrowed from federal jurisprudence to analyze a case implicating the separation of powers within the Mississippi government, that is, between the Mississippi 10 Not all cases involving the military are foreclosed by the political question doctrine.34 Ordinary tort suits, for example, may be within the competence of a court to decide, even when touching on military matters,35 but not when “[t]he interjection of tort law into the realms of . . . military affairs would effectively permit judicial reappraisal of judgments the Constitutio

2022II, § 2. 9 5 U.S. (1 Cranch) 137, 166, 177 (1803). 6 examinable.” 10 Thus, as a matter of separation of federal power, the Judicial Branch has declined to review military action “intended by the Constitution to be left to the political branches directly responsible . . . to the electoral process.” 11 The political question doctrine insulates decisions constitutionally committed to the other branches from judicial second-guessing. 12 The Supreme Court examined the contours of the federal political question doctrine in Baker v. Carr. 13 In rejecting the argument that the congressional apportionm

2022K-9, 556 S.W.3d at 254. 19 See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 232 (1986) (observing that state and federal courts share concurrent jurisdiction over Death on the High Seas Act claims); Madruga v. Super.

2020Gilligan, 413 U.S. at 5–6, 93 S. Ct. at 2443–44; see also Bancoult v. McNamara, 445 F.3d 427, 436 (D.C.

2020“A plaintiff seeking to challenge governmental action must establish (1) that he has standing to sue—either under a statutory grant of standing or because he has suffered a particularized injury 4 The City also asserted official immunity, legislative immunity, lack of private right of action, mootness, the political question doctrine, and lack of trial court jurisdiction over penal matters. –11– from that governmental action that is distinct from the general public—and (2) that sovereign immunity does not bar his challenge—either because the Legislature has waived sovereign immunity or because

2020“A plaintiff seeking to challenge governmental action must establish (1) that he has standing to sue—either under a statutory grant of standing or because he has suffered a particularized injury 4 The City also asserted official immunity, legislative immunity, lack of private right of action, mootness, the political question doctrine, and lack of trial court jurisdiction over penal matters. –11– from that governmental action that is distinct from the general public—and (2) that sovereign immunity does not bar his challenge—either because the Legislature has waived sovereign immunity or because

2018In In re Hooker, 87 So. 3d 401, 404 (Miss. 2012), the court borrowed from federal jurisprudence to analyze a case implicating the separation of powers within the Mississippi government, that is, between the Mississippi 10 Not all cases involving the military are foreclosed by the political question doctrine.34 Ordinary tort suits, for example, may be within the competence of a court to decide, even when touching on military matters,35 but not when “[t]he interjection of tort law into the realms of . . . military affairs would effectively permit judicial reappraisal of judgments the Constitutio

2018In In re Hooker, 87 So. 3d 401, 404 (Miss. 2012), the court borrowed from federal jurisprudence to analyze a case implicating the separation of powers within the Mississippi government, that is, between the Mississippi 10 Not all cases involving the military are foreclosed by the political question doctrine.34 Ordinary tort suits, for example, may be within the competence of a court to decide, even when touching on military matters,35 but not when “[t]he interjection of tort law into the realms of . . . military affairs would effectively permit judicial reappraisal of judgments the Constitutio

2018The political question doctrine requires us to be mindful of the broader implications of reviewing sensitive military decisions, such as maintaining respect for the separation of powers and the federalism system outlined in the United States Constitution, 76 See post at __ (Devine, J., dissenting). 77 Post at __ (Guzman, J., dissenting); post at __ (Devine, J., dissenting); see Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 , 227–228 (Tex. 2004) (“If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdictio

2018Dist. v. Clark, 544 S.W.3d 755, 770-71 (Tex. 2018); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). 14 Ante at 20. 15 See Miranda, 133 S.W.3d at 227 . 16 Cf. id. at 224-25, 231-32 (evaluating affirmative evidence that the governmental entity was not grossly negligent). 17 See Alamo, 544 S.W.3d at 770 ; Miranda, 133 S.W.3d at 232 . 18 See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015). 5 The Court handwaves established procedure, saying fealty to our precedent would reduce the political question doctrine “to an irrelevance.”19 But this is little

2018Dist. v. Clark, 544 S.W.3d 755, 770-71 (Tex. 2018); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). 14 Ante at 20. 15 See Miranda, 133 S.W.3d at 227 . 16 Cf. id. at 224-25, 231-32 (evaluating affirmative evidence that the governmental entity was not grossly negligent). 17 See Alamo, 544 S.W.3d at 770 ; Miranda, 133 S.W.3d at 232 . 18 See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015). 5 The Court handwaves established procedure, saying fealty to our precedent would reduce the political question doctrine “to an irrelevance.”19 But this is little

2018III We turn now to the “discriminating analysis”71 required to apply these considerations in the political question doctrine to this case. 66 Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991). 67 Gilligan, 413 U.S. at 10 . 68 Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 478 (3d Cir. 2013). 69 Id. at 474 . 70 Id. 71 Baker v. Carr, 369 U.S. 186, 211 (1962). 16 AMK9 contends that the Department of Defense (with which it contracted to provide Kallie) and the Army (in which Kallie served) caused Freeman’s injuries, in part because the Army built (and rebuilt) Kallie’s kennel

2018Dist. v. Clark, 544 S.W.3d 755, 770-71 (Tex. 2018); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). 14 Ante at 20. 15 See Miranda, 133 S.W.3d at 227 . 16 Cf. id. at 224-25, 231-32 (evaluating affirmative evidence that the governmental entity was not grossly negligent). 17 See Alamo, 544 S.W.3d at 770 ; Miranda, 133 S.W.3d at 232 . 18 See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015). 5 The Court handwaves established procedure, saying fealty to our precedent would reduce the political question doctrine “to an irrelevance.”19 But this is little

2018I therefore join JUSTICE DEVINE’s dissenting opinion and write separately to expound on these substantive and procedural shortcomings. 1 In re KBR, Inc. (Burn Pit Litig.), 744 F.3d 326, 331 (4th Cir. 2014). 2 Id.

2018I therefore join JUSTICE DEVINE’s dissenting opinion and write separately to expound on these substantive and procedural shortcomings. 1 In re KBR, Inc. (Burn Pit Litig.), 744 F.3d 326, 331 (4th Cir. 2014). 2 Id.

2018The 79 See McManaway v. KBR, Inc., 554 F. App’x 347, 350 (5th Cir. 2014) (Jones, J. dissenting from the denial of rehearing en banc). 80 See post at __ (Guzman, J., dissenting); post at __ (Devine, J., dissenting). 81 Miranda, 133 S.W.3d at 227 . 82 Id. at 227–228 (emphasis added). 20 dissenting JUSTICES ignore “the fundamental precept that a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided.”83 JUSTICE DEVINE’s dissent also argues that today’s decision “bars all tort suits where a military contractor—or any other defendant—is able

2015Next, because the arguments overlap, we will analyze together the defensive theories of pre-emption, the political question doctrine, and conduct within 7 See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). 5 regulatory guidelines, before moving on to the defensive theory of limitations.

2015Derivative Sovereign Immunity The doctrine of sovereign immunity provides that “no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.” Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex.2006) (citing Hosner v. DeYoung, 1 Tex. 764, 769 (1847)).

2015Id. at 1287-88 (collecting cases applying political-question doctrine to military training policies, conscription, and location of military bases). “[S]afe[] deliver[y of] vital military supplies through hostile territory in war time . . . [is] among the ‘complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force’ that are ‘essentially professional military judgments’ and . . . properly insulated from judicial review.’” Id. at 1288 (quoting Gilligan, 413 U.S. at 10 ); see also Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402

2015Political Question Doctrine Under the political question doctrine, a case presents a non-justiciable political question when one of the following characteristics is “inextricable” from the case: (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department”; (2) “a lack of judicially discoverable and manageable standards for resolving it”; (3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”; (4) “the impossibility of a court’s undertaking independent resolution without expressing la

2015Derivative Sovereign Immunity The doctrine of sovereign immunity provides that “no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent.” Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex.2006) (citing Hosner v. DeYoung, 1 Tex. 764, 769 (1847)).