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Zivotofsky v. Clinton

March 26, 2012

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER
v.
HILLARY RODHAM CLINTON, SECRETARY OF STATE



ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Court Below: 571 F. 3d 1227

SYLLABUS BY THE COURT

OCTOBER TERM, 2011

Argued November 7, 2011

Petitioner Menachem Binyamin Zivotofsky was born in Jerusalem. His mother requested that Zivotofsky's place of birth be listed as "Israel" on a consular report of birth abroad and on his passport, pursuant to §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003. That provision states: "For 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." U. S. officials refused the request, citing a State Department policy that prohibits recording "Israel" as the place of birth for those born in Jerusalem. Zivotofsky's parents filed a suit on his behalf against the Secretary of State. The District Court dismissed the case, holding that it presented a non-justiciable 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.

Held: The political question doctrine does not bar judicial review of Zivotofsky's claim. Pp. 5−12.

(a) This Court has said 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. The lower courts ruled that this case presents such a political question because they misunderstood the issue, assuming resolution of Zivotofsky's claim would require the Judiciary to define U. S. policy regarding the status of Jerusalem. In fact, this case asks the courts to determine only whether Zivotofsky can vindicate his statutory right under §214(d) to choose to have Israel recorded as his place of birth on his passport. Making such determinations is a familiar judicial exercise. Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. There is no "textually demonstrable constitutional commitment" of that question to another branch: At least since Marbury v. Madison, 1 Cranch 137, this Court has recognized that it is "emphatically the province and duty" of the Judiciary to determine the constitutionality of a statute. Nor is there "a lack of judicially discoverable and manageable standards for resolving" the question: Both parties offer detailed legal arguments concerning whether the textual, structural, and historical evidence supports a determination that §214(d) is constitutional. Pp. 5-12.

(b) Because the lower courts erroneously concluded that the case presents a political question, they did not reach the merits of Zivotofsky's claim. This Court is "a court of final review and not first view," Adarand Constructors, Inc. v. Mineta, The opinion of the court was delivered by: Chief Justice Roberts

566 U. S. ____ (2012)

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 (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 non-justiciable 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. ___ (2011).

II.

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


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