Monday, March 26, 2012

Passport Dispute Does Not Raise Political Question

The Supreme Court ruled on Monday in Zivotofsky v. Clinton that the political question doctrine does not bar judicial review of the constitutionality of a federal statute that requires the Secretary of State to designate "Israel" as the country of birth for a U.S. citizen born in Jerusalem who requests such designation.  We previewed the case here, and we reviewed the oral argument here.

The ruling dodges the significant underlying separation-of-powers question over which branch has authority to designate the country of birth on a U.S. passport--at least for now.  The Court remanded the case for consideration of this issue; it is sure to return.

The case pits State Department regs forbidding the designation of Israel as the country of birth for a U.S. citizen born in Jerusalem against a federal statute that requires such designation--in short, whether the President or Congress has authority to specify the country of birth on a U.S. passport for a U.S. citizen born in Jerusalem.  Here, this power also implicates U.S. foreign policy, because the designation would be seen as taking sides in the Israeli-Palistinian conflict.  Complicating things, President George W. Bush issued a signing statement on the legislation, Section 214(d) of the Foreign Relations Authorization Act, saying that it unconstitutionally interferes with the President's foreign affairs powers.  (The constitutionality of the signing statement, however, wasn't before the Court.)

The D.C. Circuit ruled that the case raised a nonjusticiable political question--the President's authority to recognize foreign sovereigns--and affirmed its dismissal.

The Supreme Court reversed.  Chief Justice Roberts wrote for the Court that the case merely involved the constitutionality of a federal statute--"a familiar judicial exercise"--and did not require the courts to intervene in or to set foreign policy.  This didn't make the case easy, but it did make it appropriate for judicial review.  The Court remanded the case to get the lower courts' best thinking on the merits before the case inevitably comes back to it.

Justice Sotomayor wrote a concurrence joined in part by Justice Breyer, and Justice Alito wrote a concurrence.  Justice Breyer was the lone dissenter, arguing that the case was a political question because it may well require the Court to evaluate foreign policy considerations, because there are no strong reasons for judicial review, and because the political branches can work it out on their own.

The ruling sends the case back to the lower courts for consideration on the merits.  But this important separation-of-powers case is almost certain to come back to the high Court.

SDS

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