Sunday, November 6, 2011

Argument Preview: Foreign Affairs and Separation of Powers

The Supreme Court will hear arguments on Monday in MBZ (Zivotofsky) v. Clinton, a case that on its face tests whether Congress or the President has authority to name the place of birth on a U.S. passport--but it's likely about much more.

The case arose when two U.S. citizens living in Israel sought a passport for their child, born in Jerusalem, with a place of birth as "Jerusalem, Israel."  Embassy officials agreed to designate the place of birth "Jerusalem," but refused to designate "Israel."  The officials' refusal was based on long-standing U.S. policy not to recognize Jerusalem as part of Israel and U.S. State Department regulations that prohibit the designation of "Israel" as the country of birth for any U.S. citizen born in Jerusalem.

The parents sued.  They pointed to the Foreign Relations Authorization Act, Fiscal Year 2003, that requires the Secretary of State to designate "Israel" as the country of birth for any U.S. citizens born in Jerusalem who so requests.  But President Bush issued a signing statement on the Act that claimed that this provision was unconstitutional and said that the executive branch would decline to enforce it.

The case thus pits the President against Congress on the question of which branch has authority over the birthplace on the passport.

The lower courts dismissed the case, holding that it raised a nonjusticiable political question.  The Zivotofskys appeal that ruling.  But the Supreme Court also directed the parties to argue the merits: whether the Act unconstitutionally infringes upon the President's authority in foreign affairs.

The Zivotofskys argue that the case involves a run-of-the-mine issue relating to passports--the mere designation of a place of birth, which serves identification objectives, not foreign policy objectives.  Thus in their view the case does not involve a political question, and requiring the designation of "Israel" as a country of birth for a U.S. citizen born in Jerusalem is within congressional authority. 

Secretary of State Clinton argues that the President's Article II power to receive Ambassadors includes the power to recognize (or not) foreign sovereigns and the power to designate them (or not) on U.S. passports.  She also argues that this is a political question because of the sensitive foreign policy issues behind the State Department regulation--the kind of issues that are delegated to the President alone under the Constitution.

The fact that the Court directed the parties to brief the merits suggests that it'll say at least something about the merits.  If it does, it seems likely that it'll say something very narrow--dealing only with the extent of the President's authority to receive Ambassadors as against any congressional authority over passports.  But even that narrow ruling could say something broader about the respective roles of the political branches over foreign policy--a much broader question.  This seems to be a narrow, even small, case on the surface, but there are potentially very big issues beneath.

As to presidential signing statements: it seems unlikely that the Court will say anything at all about them: this issue is not squarely before the Court; the parties did not brief it thoroughly; and the Court doesn't have to deal with it to decide the case.

SDS

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