The Functional Political Question Doctrine and the Justiciability of Employee Tort Suits Against Military Service Contractors

In recent years, the U.S. military’s use of private contractors in waging its wars has drawn increased attention from the academic literature, largely related to the growing number of cases filed by U.S. servicemen and contractor personnel against companies like Halliburton and Kellogg, Brown & Root. These suits have garnered the attention of the legal academy, particularly as federal courts dismiss such suits as nonjusticiable under the political question doctrine—a doctrine of judicial restraint long associated with voting rights and gerrymandering caselaw. The recent application of the political question doctrine to cases involving military contractors raises familiar questions regarding the scope of the judiciary’s role in monitoring the actions of coordinate branches and the pragmatism of the judiciary playing such a role at all. This Note considers these matters through the lens of the functional political question doctrine. It concludes that while federal courts may have the institutional capacity to play some role in administering tort suits against private contractor firms, that participation should be carefully cabined to avoid any judicial interference with the military’s authority to set standards for combat. Thus, while in-field negligence claims will usually present nonjusticiable political questions, fraudulent recruitment claims will not.