During Judge Samuel A. Alito, Jr.’s, Supreme Court confirmation hearings, a number of senators on the Judiciary Committee raised issues over executive power relating to national security, and in a few instances Alito raised a concept known as the “political question doctrine.” 

For example, as noted in another short article on a line of questioning about the power of the president to launch military action without congressional authorization, Alito noted that at least an initial line of inquiry would be the political question doctrine, and that he would refrain from issuing an advisory opinion on constitutional questions, while also indicating the need to study the matter further.  Note also that in that case the questioner wished to focus narrowly on purely constitutional matters, not, for example, the War Powers Resolution, a subject Alito had begun to raise, consistent with his focus in other areas on starting with statutory analysis to see if that can resolve a dispute without the need for dispute over constitutional issues.

In other questioning, Alito did more to describe some of the aspects of the political question doctrine and cited Baker v. Carr as providing guidance in the area:

“[T]here's a whole doctrine that's called the political question doctrine … It doesn't mean that the dispute has something to do with politics or anything like that.… It means … it's a kind of dispute that the Supreme Court has outlined as being not a proper dispute to be resolved by the judiciary, involving a constitutional issue that should be resolved often between the branches of governments.

And I was talking earlier about some things that the president does that are not reviewable -- vetoes, pardons, et cetera. There are things that Congress does that are not reviewable -- impeachment, et cetera.

In Baker v. Carr, Justice Brennan's opinion outlined a whole list of factors that inform the analysis of whether something is a justiciable dispute. And sometimes these disputes between the branches of government are held by the Supreme Court to fall into that category of being disputes that can't properly be resolved by the courts.

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The political question doctrine -- this doctrine of issues that are not justiciable -- often involves conflicts between the branches of the government.”[1]

One issue at the heart of the matter is whether there is a case or controversy that is “justiciable” by a court.  When discussing wiretapping surveillance, Alito commented that questions over the potential violation of a person’s individual rights certainly were the kind of question resolved by courts, and that he did not intend to suggest such a dispute would be deemed non-justiciable:

“And when a person is asserting a person's individual rights are violated, that is the type of case that is often resolved -- I mean, typically resolved by the judiciary.

…. I don't think I was referring specifically to this issue[, FISA wiretaps, when mentioning the political question doctrine].” [2]

At various points Alito indicated his view that questions over the legality of surveillance touched upon Fourth Amendment issues.  Fourth Amendment issues have long been within the purview of the courts, and Alito did not seem to display hesitancy over the courts addressing them in litigation.

Baker v. Carr, which dealt with the apportionment of seats in the Tennessee General Assembly, calls for thoughtful analysis, and in dictum had this to say about the justiciability of matters relating to foreign relations:

“Foreign relations: there are sweeping statements to the effect that all questions touching foreign relations are political questions.  Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature, but many such questions uniquely demand single-voiced statement of the government's views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.”[3]

As mentioned elsewhere, while flagging the political question doctrine as one matter for consideration in the legal landscape, Alito declined to forecast where he would seek to draw the line and indeed explicitly refrained from offering an advisory opinion on constitutional questions involving the balance of powers.