Zivotofsky v. Clinton

• Decision Date: 26 March 2012
• Docket Number: No. 10–699.,10–699.
• Citation: 132 S.Ct. 1421,182 L.Ed.2d 423,566 U.S. 189
• Parties: Menachem Binyamin ZIVOTOFSKY, by his parents and guardians, Ari Z. and Naomi Siegman ZIVOTOFSKY, Petitioner v. Hillary Rodham CLINTON, Secretary of State.
• Court: U.S. Supreme Court

566 U.S. 189

132 S.Ct. 1421

182 L.Ed.2d 423

Menachem Binyamin ZIVOTOFSKY, by his parents and guardians, Ari Z. and Naomi Siegman ZIVOTOFSKY, Petitioner

v.Hillary Rodham CLINTON, Secretary of State.

No. 10–699.

Supreme Court of the United States

Argued Nov. 7, 2011.

Decided March 26, 2012.

Nathan Lewin, Washington, DC, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Washington, DC, for Respondent.

Nathan Lewin, Counsel of Record, Alyza D. Lewin, Lewin & Lewin, LLP, Washington, DC, for Petitioner.

Harold Hongju Koh, Legal Adviser, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Tony West, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Ginger D. Anders, Assistant to the Solicitor General, Douglas N. Letter, Lewis S. Yelin, Attorneys, Department of Justice, Washington, DC, for Respondent.

Chief Justice ROBERTS delivered the opinion of the Court.

Congress enacted a statute providing that Americans born in Jerusalem may elect to have "Israel" listed as the place of birth on their passports. The State Department declined to follow that law, citing its longstanding policy of not taking a position on the political status of Jerusalem. When sued by an American who invoked the statute, the Secretary of State argued that the courts lacked authority to decide the case because it presented a political question. The Court of Appeals so held.

We disagree. The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution.

I

A

In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003, 116 Stat. 1350. Section 214 of the Act is entitled "United States Policy with Respect to Jerusalem as the Capital of Israel." Id., at 1365. The first two subsections express Congress's "commitment" to relocating the United States Embassy in Israel to Jerusalem. Id., at 1365–1366. The third bars funding for the publication of official Government documents that do not list Jerusalem as the capital of Israel. Id., at 1366. The fourth and final provision, § 214(d), is the only one at stake in this case. Entitled "Record of Place of Birth as Israel for Passport Purposes," it provides that "[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel." Ibid.

The State Department's Foreign Affairs Manual states that "[w]here the birthplace of the applicant is located in territory disputed by another country, the city or area of birth may be written in the passport." 7 Foreign Affairs Manual § 1383.5–2, App. 108. The manual specifically directs that passport officials should enter "JERUSALEM" and should "not write Israel or Jordan" when recording the birthplace of a person born in Jerusalem on a passport.Id., § 1383, Exh. 1383.1, App. 127; see also id., §§ 1383.1, 1383.5–4, .5–5, .5–6, App. 106, 108–110.

Section 214(d) sought to override this instruction by allowing citizens born in Jerusalem to have "Israel" recorded on their passports if they wish. In signing the Foreign Relations Authorization Act into law, President George W. Bush stated his belief that § 214 "impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch." Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, Public Papers of the Presidents, George W. Bush, Vol. 2, Sept. 30, 2002, p. 1698 (2005). He added that if the section is "construed as mandatory," then it would "interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states." Ibid. He concluded by emphasizing that "U.S. policy regarding Jerusalem has not changed." Ibid. The President made no specific reference to the passport mandate in § 214(d).

B

Petitioner Menachem Binyamin Zivotofsky was born in Jerusalem on October 17, 2002, shortly after § 214(d) was enacted. Zivotofsky's parents were American citizens and he accordingly was as well, by virtue of congressional enactment. 8 U.S.C. § 1401(c) ; see Rogers v. Bellei, 401 U.S. 815, 835, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971) (foreign-born children of American citizens acquire citizenship at birth through "congressional generosity"). Zivotofsky's mother filed an application for a consular report of birth abroad and a United States passport. She requested that his place of birth be listed as "Jerusalem, Israel" on both documents. U.S. officials informed Zivotofsky's mother that State Department policy prohibits recording "Israel" as Zivotofsky's place of birth. Pursuant to that policy, Zivotofsky was issued a passport and consular report of birth abroad listing only "Jerusalem." App. 19–20.

Zivotofsky's parents filed a complaint on his behalf against the Secretary of State. Zivotofsky sought a declaratory judgment and a permanent injunction ordering the Secretary to identify his place of birth as "Jerusalem, Israel" in the official documents. Id., at 17–18. The District Court granted the Secretary's motion to dismiss the complaint on the grounds that Zivotofsky lacked standing and that his complaint presented a nonjusticiable political question.

The Court of Appeals for the D.C. Circuit reversed, concluding that Zivotofsky did have standing. It then observed that while Zivotofsky had originally asked that "Jerusalem, Israel" be recorded on his passport, "[b]oth sides agree that the question now is whether § 214(d) entitles [him] to have just ‘ Israel’ listed as his place of birth." 444 F.3d 614, 619 (2006). The D.C. Circuit determined that additional factual development might be helpful in deciding whether this question was justiciable, as the parties disagreed about the foreign policy implications of listing "Israel" alone as a birthplace on the passport. Id., at 619–620. It therefore remanded the case to the District Court.

The District Court again found that the case was not justiciable. It explained that "[r]esolving [Zivotofsky's] claim on the merits would necessarily require the Court to decide the political status of Jerusalem." 511 F.Supp.2d 97, 103 (2007). Concluding that the claim therefore presented a political question, the District Court dismissed the case for lack of subject matter jurisdiction.

The D.C. Circuit affirmed. It reasoned that the Constitution gives the Executive the exclusive power to recognize foreign sovereigns, and that the exercise of this power cannot be reviewed by the courts. Therefore, " deciding whether the Secretary of State must mark a passport ... as Zivotofsky requests would necessarily draw [the court] into an area of decisionmaking the Constitution leaves to the Executive alone." 571 F.3d 1227, 1232–1233 (2009). The D.C. Circuit held that the political question doctrine prohibits such an intrusion by the courts, and rejected any suggestion that Congress's decision to take "a position on the status of Jerusalem" could change the analysis. Id., at 1233.

Judge Edwards concurred in the judgment, but wrote separately to express his view that the political question doctrine has no application to this case. He explained that the issue before the court was whether § 214(d) "impermissibly intrude[s] on the President's exclusive power to recognize foreign sovereigns." Id., at 1234. That question, he observed, involves "commonplace issues of statutory and constitutional interpretation" plainly within the constitutional authority of the Judiciary to decide. Id., at 1235. Reaching the merits, Judge Edwards determined that designating Israel as a place of birth on a passport is a policy "in furtherance of the recognition power." Id., at 1243. Because in his view the Constitution gives that power exclusively to the President, Judge Edwards found § 214(d) unconstitutional. For this reason, he concluded that Zivotofsky had no viable cause of action, and concurred in affirming the dismissal of the complaint.

Zivotofsky petitioned for certiorari, and we granted review. 563 U.S. ––––, 131 S.Ct. 2897, 179 L.Ed.2d 1187 (2011).

II

The lower courts concluded that Zivotofsky's claim presents a political question and therefore cannot be adjudicated. We disagree.

In general, the Judiciary has a responsibility to decide cases properly before it, even those it "would gladly avoid."

Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821). Our precedents have identified a narrow exception to that rule, known as the "political question" doctrine. See, e.g., Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). We have explained that a controversy "involves a political question ... where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’ " Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ). In such a case, we have held that a court lacks the authority to decide the dispute before it.

The lower courts ruled that this case involves a political question because deciding Zivotofsky's claim would force the Judicial Branch to interfere with the President's exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to "decide the political status of Jerusalem." 511 F.Supp.2d, at 103. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine...