March 26, 2012

Supreme Court Decides Zivotofsky v. Clinton

On March 26, 2012, the U.S. Supreme Court decided Zivotofsky v. Clinton, No. 10-699, reversing the D.C. Circuit and holding that the political question doctrine does not bar federal courts from considering the constitutionality of a statute providing that Americans born in Jerusalem may elect to have "Israel" listed as the place of birth on their passports.

In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003, which in relevant part provided that the Secretary of State, upon the request of an American citizen born in Jerusalem or that citizen's parents, shall "record the place of birth as Israel" on that person's passport. Congress passed this statute to override instructions in a State Department manual that citizens born in Jerusalem could "not write Israel or Jordan" on their passport. Executive branch officials believed that to write "Israel" as the place of birth on a passport would violate the longstanding policy of not taking a position on the political status of Jerusalem.

Menachem Zivotofsky was born in Jerusalem just before this statute was enacted, and his parents requested that his place of birth be listed as "Jerusalem, Israel" on his passport. The State Department refused, and Zivotofsky was issued a passport listing his place of birth only as "Jerusalem." Zivotofsky's parents filed a complaint against the Secretary of State, but the District Court granted the Secretary's motion to dismiss on the grounds that Zivotofsky's complaint presented a nonjusticiable political question. The United States Court of Appeals for the District of Columbia Circuit affirmed, reasoning that resolving Zivotofky's case would require the court to "decide the political status of Jerusalem," in conflict with the executive branch's responsibility to decide the recognition of foreign sovereigns. 

The Supreme Court reversed.  Instead of framing the issue as requiring the courts to decide the "political status of Jerusalem," the Court viewed the case instead as merely addressing whether Zivotofsky "may vindicate his statutory right" to "choose to have Israel recorded on his passport as his place of birth." To resolve his claim, the Court would have to decide only whether Zivotofky's interpretation of the statute was correct and whether the statute is constitutional, a "familiar exercise" dating back to Marbury v. Madison. The Court reasoned that "no policy underlying the political question doctrine suggests that Congress or the Executive ... can decide the constitutionality of a statute."  Accordingly, the Court rejected the State Department's position that the Constitution exclusively committed this issue to the executive branch or that there was a lack of judicially manageable standards for resolving the case and remanded the case to the District Court for consideration on the merits.

Chief Justice Roberts delivered the opinion of the Court, in which Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan, JJ., joined. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Breyer joined in part. Justice Alito filed an opinion concurring in the judgment. Justice Breyer filed a dissenting opinion.

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