March 26, 2012

Courts can decide whether the State Department can decline to follow Congress's statute allowing Americans born in Jerusalem to have their passports say "Israel."

The question is justiciable — it's not within the "political question doctrine" — says the Supreme Court today, in an opinion, Zivotofsky v. Clinton, written by Chief Justice Roberts. Roberts states the doctrine in the one-line form that Chief Justice Rehnquist used in Nixon v. United States (1993): Is there "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." (The language comes from the 1962 case Baker v. Carr, but Baker v. Carr phrases the doctrine in terms of 6 factors. The Nixon version refers only to the first 2.)
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 whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....
The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. 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 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. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.” INS v. Chadha, 462 U. S. 919, 943 (1983)....
Thus, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department." Are there "judicially discoverable and manageable standards"? It might seem so if you think the question is the political status of Jerusalem, the Chief writes, but the issue is whether the statute is constitutional: Can Congress interfere with the Executive and create the right that Zivotofsky now asserts? The answer may be no, but that's the answer on the substantive constitutional merits, not a determination that the courts may not reach the substantive merits. Reciting all the arguments for and against congressional power, Roberts reject the notion that they show why judges cannot answer the question:
Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do.
So the "political question" argument fails and the case returns to the D.C. Circuit court to get on to the substantive merits.

22 comments:

cubanbob said...

So the issue really becomes can congress legislate foreign policy?

tim maguire said...

Does congress have the power to pass a law saying Americans born in Paris can have their passport say Italy?

I don't know why they would, but I also don't know why they can't. There are no implications for foreign policy.

cubanbob said...

Tim what is crazier, congress deciding that paris is a city in a country other than france but nevertheless belonging to a nation state or the state dept. deciding a city that is clearly the seat of government of a nation state is part of no state?

Your argument makes no sense, congress through statute made a foreign policy decision, one the state department apparently disagrees with. There is a dispute between the branches and the court will first have to determine if congress does indeed have the power to legislate foreign policy.

traditionalguy said...

The whole world cares whether a Jew born in Jerusalem can list his country of birth as Israel. And the answer is such a Big Deal that the White House and Congress are taking opposite sides.

I blame David Ben Gurion and his Southern Baptist Democrat friend-of -Jews once in the White House.

The world now awaits again to see what the current White House enemy-of-Jews will do to replace the 1968 borders of Ben Gurion and Truman's folly with the perilous 1949 truce borders that ended the first of the three Arab wars of invasion trying to exterminate Jews.

And the question always comes back to one focus: who gets the political control over Old Jerusalem.

Thorley Winston said...

So the issue really becomes can congress legislate foreign policy?

Hasn’t Congress always had the power to legislate foreign policy and exercised that power in various ways?

tim maguire said...

cubanbob, you are welcome to not like my arguement, but it is disingenuous to say it makes no sense--it makes perfect sense.

Your objection makes no sense--I make no assertion about congress moving Paris to Italy. I can't imagine where you got that idea.

Bruce Hayden said...

So the issue really becomes can congress legislate foreign policy?

I think that you are correct here - the question should have been a separation of powers issue, and not a political question one.

Bruce Hayden said...

Your argument makes no sense, congress through statute made a foreign policy decision, one the state department apparently disagrees with. There is a dispute between the branches and the court will first have to determine if congress does indeed have the power to legislate foreign policy.

I think that the question is a bit narrower - whether Congress had this power in this situation.

What is interesting, is that the parties on this are almost flopping sides from the FISA debate. There, the Executive power was to defend the country, and in this case, it is to conduct foreign policy. Both plenary Presidential powers. It will be interesting to see how the opponents of this legislation, who supported FISA over the Bush Administration, try to apply the Youngstown Steel standard.

Rabel said...

I see three questions:

1. Narrow -Does control of the listing of place of birth on a passport (which does not denote citizenship) amount to control of foreign relations?

2. Broad - Who has the authority to control foreign relations? The constitution is unclear but precedent largely favors the executive.

3. Money - Who is paying what must be an absurd amount of money to take a seemingly trivial issue to the SC and back again? And why?

Alex said...

Am Yisrael Chai!

Bender said...

This is purely a matter of applying and enforcing a ministerial law as it is written. The statute applies only for "purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen." As such, the law has absolutely no impact whatsoever on a president's prerogative to make treaties or appoint ambassadors, and the State Department has no authority whatsoever to rewrite the statute, to impose restrictions or limitations where Congress has expressly set out what the law is.

I know that it is all the rage in the Obama Administration for agencies to do whatever the hell they want, but despite their dictatorial aspirations, they are not above the law.

The law says that if your child is a United States citizen born in the city of Jerusalem, and you request that Israel be listed as the place of birth on his or her passport, then Israel is to be listed. It is a matter entirely between the U.S. citizen and the U.S. government -- foreign nations have nothing to do with it. Foreign policy has nothing to do with it. Separation of powers has nothing to do with it.

Cedarford said...

Bender - "The law says that if your child is a United States citizen born in the city of Jerusalem, and you request that Israel be listed as the place of birth on his or her passport, then Israel is to be listed."

============
Incorrect. It is not just a private matter between the citizen born abroad and the US government. Parts of Jeusalem are deemed "Occupied Territory" by the US following rules of the Geneva Convention and various UN Security Council Resolutions the US voted in favor of before AIPAC had such fearsome clout.
The Zionists would deeply love to manipulate America into backing annexation and see any legal declaration that a Jew born in Occupied Jerusalem or a Settlement deep inside the West Bank was born in "Israel proper" as a useful step in grabbing more land.

It would be like State Deptament agreeing to mark the passport of any Pakistani-American born in Kashmir India in disputed territories as born in Kashmir-Jammu sovereign land of PAKISTAN ...thus conferring de facto recognition on Pakistan's claim to the territory.
Or in the 30s, heeding Nazi requests to stamp the passport of German-Americans newly born in the Czech Sudetanlands or Polish Free City of Danzig - as officially born on the sacred soil of the 3rd Reich.

The other alternative is to have the Zionist forgoe US dual citizen /dual loyalty status and just go with an Israeli citizenship and Israeli passport. Where he could get born in Jerusalem, Israel or born on the Baa'at Sheev Settlement, Land of Israel (on the outskirts of Ramallah) stamped all over THAT countries passport.

BarryD said...

Curiosity: what do the passports say, if they don't say "Israel"?

They can't say "Palestine". The US does not recognize such a country, nor does the UN.

"Jamaica" wouldn't make sense.

So what does it say?

Cedarford said...

IT is a pretty big deal. It is an Israeli attempt to use Congress and other pols hungry for money to endorse creeping annexation of land for Israel and subvert UN Res 242.
No other nation, not even a single Western democracy, recognizes Zionist efforts to create an Eretz, or Greater, Israel -by annexing disputed lands.

Newt Gingrich is basically alive in the Republican primaries because he found a Zionist billionaire that will fund him if Newt calls for land to be grabbed, the US recognize the Zionist claim of lands in question, and trot out the Zionist theory that Palestinians are "an invented people".

Bender said...

OK, Adolf, I'm done. Go sieg heil all by yourself.

John Burgess said...

Barry D: They do indeed say 'Palestine'. Similarly, the US Consulate in Jerusalem is not subordinate to the US Embassy in Tel Aviv. It's its own master, though of course they work together (most of the time).

Cedarford is correct in his assessment of why this is a big deal. Congress really doesn't have the power to decide which borders of a foreign country the USG as a whole must accept. This is similar to the perennial suggestion by Congress that the US Embassy be moved to Jerusalem.

Doing so takes a side in an issue that the USG and the rest of the world believe must be decided by political negotiations between two parties, neither of which is the USG.

Cedarford loses me with his anti-Zionist pap, though.

cubanbob said...

Forget C 4's usual Jew rant.

Tim,Bruce here is a thought experiment:

1-to obtain a passport you need to provide proof of US citizenship and a birth certificate.

2-the passport requires that the city and nation of birth must be listed.

3- the validity of the government issuing the certificate is deemed valid ( who else can issue the certificate?). Said government in accordance to it's laws determines the validity of it's cities, provinces and it's national names.



A US national is born in Saigon in 1970. Which country is listed on the country for country of birth?

A US national is born in Koenigsberg in 1944. Which country is listed as country of birth on the passport?

A US national is born in Taipei in 1970. What is the country of birth on the passport?

A US national is born in Taipei in 1995. What is the country of birth on the passport?

A US national born in Jerusalem in 1945. What country is listed as country of birth on the passport?

It's rather bizarre to recognize a country and not recognize the capital of the country as chosen by that country. Even more strange to recognize the legitimacy of that country's birth certificate for any city in that country along with along with the name of the country but not it's capital.

Nora said...

What a person born in Jerusalem after 1948 is to write as a country of birth? UN declared international city?

Lawyer Mom said...

If the notion of horse-trading weren't weighing on my mind so, I'd have more to say. But it is, and so it goes.

Gary Rosen said...

" Parts of Jeusalem are deemed "Occupied Territory" by the US following rules of the Geneva Convention and various UN Security Council Resolutions"

It is clear now, C-fudd wants US foreign policy to be decided by the UN.

Rusty said...

And the question always comes back to one focus: who gets the political control over Old Jerusalem.


The army strong enough to hold it.

Abe Bird said...

Cedarford says: "It would be like State Deptament agreeing to mark the passport of any Pakistani-American born in Kashmir India in disputed territories as born in Kashmir-Jammu sovereign land of PAKISTAN ...thus conferring de facto recognition on Pakistan's claim to the territory.".

Didn't India annex Kashmir by force from Pakistan? So your model shows that each American born in Jerusalem should be recognized as an Israeli citizen (as each Indian born in occupied Kashmir should be recognize as Indian). Let alone that the boy was born in Western Jerusalem which was conquered in 1948 and not 1967!