Zivotofsky v. Clinton
A. Facts:
Congress enacted a statute in early 2002 providing that Americans born in
Jerusalem may elect to have “Israel” listed as the place of birth on their
passports. Menachem Binyamin Zivotofsky is a United States citizen born in
Jerusalem in Octover of 2002. In December her mother filed to have her
place of birth listed on her passport as Jerusalem, Israel under the statue
previously mentioned. She was denied this request by the State Department.
The State Department cited its longstanding policy of not taking a position on
the political status of Jerusalem. When the parents of Zivotofsky then sued
the State Department they argued that the courts lacked the authority to
decide the case because it presented a political question, the Court of Appeals
agreed.
B. Procedurals History
The District Court dismissed the case, holding that it presented a
nonjusticiable political question regarding Jerusalem’s political status. The
D.C. Circuit affirmed, reasoning that the Constitution gives the Executive the
exclusive power to recognize foreign sovereigns, and that the exercise of that
power cannot be reviewed by the courts. Zivotofsky’s parents petitioned the
Supreme Court for a writ of certiorari to hear the case, which was granted.
C. Issue
Does the political question doctrine deprive the federal court of jurisdiction
to enforce a federal statute that explicitly directs the Secretary of State how
to record the birthplace of an American citizen on a consular Report of Birth
Abroad and on a passport?
D. Holding
No. The political question doctrine does not bar judicial review of Zivotosky’s
claim.
E. Judgment
Vacated and remanded
F. Legal Reasoning
Majority Opinion (Roberts):
1. The Judiciary has a responsibility to decide cases properly before it, even
those it “would gladly avoid.”
a. Precedent has identified a narrow exception to this rule, known as
“political question” doctrine.
b. A political question “involves a political question…where there is
‘a textually demonstrable constitutional commitment of the issue
to a coordinate political department; or lack of judicially
discoverable and manageable standards for resolving it.”
c. Is this a political question? No.
2. Although there may be a political element that does not bar the court in
making a decision in this case
a. Zivotosky is not asking the court to define the U.S. policy regarding
the status of Jerusalem.
b. To resolve his claim, the Judiciary must decide if Zivotofsky’s
interpretation of the statute is correct, and whether the statute is
constitutional. This is something familiar with judicial exercise.
c. Parties do not dispute the interpretation of the statute so that
leaves the decision to be only made on the constitutionality.
3. It must be decided whether or not § 214(d) is constitutional.
a. Determining the constitutionality of § 214(d) involves deciding
whether the statute impermissibly intrudes upon Presidential
powers under the Constitution.
b. If so the law must be invalidated or if not the court must order the
secretary of state to issue Zivotofsky a passport that complies with
§ 214(d).
c. Either way it is for the court to decide not the Executive or
Congress.
d. Secretary of State cites Art II § 3 as giving the power to the
president and Zivotofsky argues that Art I § 8 cl. 4 gives Congress
the power to enact § 214(d).
4. Because the Supreme Court is “a court of final review and not first view”
the lower courts must make this decision on constitutionality first.
Concurring (Alito):
1. Determining the constitutionality of an Act of Congress may present a
political question but the narrow nature of the issue raised by the
petitioner to the court does not fall into this category of cases.
a. The question is whether the statutory provision at issue infringes
the power of the President to regulate the contents of a passport.
Concurring/Dissenting (Sotomayor):
1. Concurred with the court’s conclusion that this case does not present a
political issue.
a. Inquiring determining political question doctrine is more demanding
than the court suggest
2. The political question doctrine is “essentially a function of separation of
powers” (Baker v Carr).
a. Bakers six test
b. Must take a closer look at this than the courts opinion does
c. Cannot make decision based on whether litigants rely on textual
evidence, must decide whether evidence provides a court a basis to
adjudicate meaningfully the issue with which it is presented.
3. Lower court misapprehended the nature of its task
Dissent (Bryer):
1. Agrees with part 1 of Sotomayor’s opinion where she points out Baker v. Carr
a. Courts decision would cause lower courts to decide a political
question as outlined in Baker
2. Decision making in this area is highly political and touches on sensitive
foreign policy issues
a. The court cannot decide foreign policy
b. By deciding this case the court would inadvertently jeopardizing
sound foreign policy
3. Minimal need for judicial intervention
a. The consequences of judicial intervention are worse than the need for
it
G. Relation to other Cases (Van Geel)
Nixon v. United States
Unlike this case Nixon ruled that it was a political question, so the box in the Van
Geel would be A or I.
H. Source of Law
“Political Question” Doctrine
Art I § 8 cl. 4
Art II § 3
§214(d) of the Foreign Relations Authorization Act
James Burkhalter