Zivotofsky v. Clinton

Supreme Court of the United States
566 U. S. ____ (2012) (2012)

ELI5:

Rule of Law:

A challenge to the constitutionality of a federal statute is a matter for the judiciary to resolve and does not present a nonjusticiable political question, even when the statute concerns foreign policy and involves a dispute between the Legislative and Executive Branches.

Facts:

In 2002, Congress enacted Section 214(d) of the Foreign Relations Authorization Act, which provides that U.S. citizens born in Jerusalem may, upon request, have 'Israel' listed as their place of birth on their passport.
Upon signing the Act, President George W. Bush issued a statement asserting that Section 214(d) impermissibly interfered with the President's constitutional authority to conduct foreign affairs.
Menachem Binyamin Zivotofsky, a U.S. citizen, was born to American parents in Jerusalem shortly after the Act was passed.
Zivotofsky's mother applied for his U.S. passport and consular report of birth abroad, requesting that his place of birth be recorded as 'Jerusalem, Israel' pursuant to the statute.
Citing a longstanding State Department policy not to take a position on the political status of Jerusalem, U.S. officials refused the request and issued a passport listing only 'Jerusalem' as the place of birth.

Procedural Posture:

Zivotofsky sued the Secretary of State in the U.S. District Court for the District of Columbia, seeking to enforce Section 214(d).
The District Court dismissed the complaint, holding that it presented a nonjusticiable political question.
The U.S. Court of Appeals for the D.C. Circuit, as the intermediate appellate court, reversed the dismissal on standing but remanded for further proceedings on justiciability.
On remand, the District Court again dismissed the complaint, ruling it was a nonjusticiable political question because it would require the court to decide the political status of Jerusalem.
The D.C. Circuit affirmed the dismissal, holding that the Executive has exclusive power over recognition of foreign sovereigns, making the issue a political question beyond judicial review.
Zivotofsky petitioned for, and the U.S. Supreme Court granted, a writ of certiorari.

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Issue:

Does a lawsuit seeking to compel the Secretary of State to follow a federal statute regarding the content of a passport present a nonjusticiable political question because it touches upon the foreign policy power of recognition?

Opinions:

Majority - Chief Justice Roberts

No. The claim does not present a nonjusticiable political question because the courts are not being asked to decide the political status of Jerusalem, but rather to determine the constitutionality of a statute. The judiciary has a responsibility to decide cases properly before it, and determining whether an Act of Congress is constitutional is 'emphatically the province and duty of the judicial department,' as established in Marbury v. Madison. The court's task is to resolve a dispute between the political branches regarding their constitutional authority, which is a familiar judicial exercise and does not require the court to make its own foreign policy decision or lack judicially manageable standards.

Dissenting - Justice Breyer

Yes. This case presents a nonjusticiable political question due to prudential considerations. Four factors, taken together, counsel against judicial intervention: 1) the issue arises in the sensitive and complex field of foreign affairs; 2) resolving the constitutional question would require courts to evaluate the foreign policy implications of a decision, a task for which they are ill-equipped; 3) Zivotofsky's asserted interest is more ideological than a fundamental right; and 4) the political branches have nonjudicial means to resolve their differences. Judicial intervention risks causing 'embarrassment' abroad and disrupting sound foreign policy decision-making.

Concurring - Justice Sotomayor

No. This case does not present a political question, but the Court’s analysis is too simplistic. To determine if a case is justiciable, a court must precisely identify the issue, which here is whether a federal statute provides Zivotofsky a right. Resolving that question requires determining the statute's constitutionality—a task textually committed to the judiciary, not another branch. The mere presence of a statute does not automatically foreclose political question analysis, nor does the use of familiar legal arguments guarantee judicially manageable standards, but in this specific case, the constitutional interpretation required is squarely within the judiciary's role.

Concurring - Justice Alito

No. The narrow question presented is whether the statute at issue infringes on the President's power to regulate the contents of a passport, not the broader question of who holds the power of recognition. While delineating the precise line between Congressional and Presidential power over passport content is difficult, it is a legal question that the judiciary is capable of deciding and does not constitute a nonjusticiable political question.

Analysis:

This decision significantly narrows the application of the political question doctrine, particularly in separation-of-powers cases involving foreign affairs. It reaffirms the judiciary's authority under Marbury v. Madison to be the ultimate arbiter of a statute's constitutionality, even when it involves a direct conflict between Congress and the President. The ruling signals that courts should not readily abdicate their duty of constitutional interpretation merely because a case has political or foreign policy implications. This case, often referred to as Zivotofsky I, cleared the path for the Supreme Court to later decide the merits of the separation-of-powers issue in Zivotofsky II.

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