The Supreme Court heard argument on November 7 in Zivotofsky v. Clinton, No. 10-699, a case involving the “political question” doctrine and the scope of the President’s authority over the conduct of foreign relations.
In 2002, as part of the Foreign Relations Authorization Act, Congress enacted Section 214, entitled “United States Policy with Respect to Jerusalem as the Cpaital of Israel.” Subsection 214(d) provides that, for purposes of issuing a passport to a United States citizen born in Jerusalem, the Secretary of State, upon request, must record the citizen’s place of birth as “Israel.” In a statement issued at the time he signed the bill, the President took the position that Section 214 is merely advisory because, if it is instead directory, Section 214 would impermissibly infringe upon the President’s constitutional authority to formulate the United States’ position on the recognition to be given to foreign states.
Menachem Zivotofsky, who was born in Jerusalem in 2002 to U. S. citizens, applied through his mother for a passport, requesting that the place of birth be listed as “Jerusalem, Israel.” The State Department responded that its policy precluded listing “Israel” as Zivotofsky’s birthplace, and issued a passport listing the place of birth as “Jerusalem.” Menachem, through his parents, then filed an action for declaratory and injunctive relief, seeking an order compelling the State Department to comply with Section 214(d). Both the district court and the Court of Appeals held that the issues presented by Zivotofsky’s action raised non-justiciable political questions. The Supreme Court granted certiorari to consider both the political question and whether Section 214 is an unconstitutional infringement of the President’s authority.
During oral argument, Zivotofsky’s attempt to defend Section 214 met with skepticism. Zivotofsky took the position that Congress has authority to legislate in the area of foreign policy, and that Congress acted appropriately in concluding the designation on a passport of “Jerusalem, Israel” as an American citizen’s birthplace would do no harm to U. S. foreign policy.
However, Chief Justice Roberts, and Associate Justices Kennedy, Ginsburg, Scalia, Sotomayor and Kagan, all expressed doubt that Congress could legislate in this area without encroaching upon the President’s authority to conduct the foreign relations of the United States. As Justice Sotomayor put it:
“[W]hat entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?”
The Court was more receptive to the Solicitor General’s argument that the President’s authority over foreign affairs, including the extent to which foreign governments are recognized, is exclusive, and that Section 214 necessarily infringes upon that authority. Justice Breyer suggested that the Court might want to abstain from entering this controversy between the legislative and executive branches by upholding the Court of Appeals’ conclusion that this case involves a non-justiciable political question. However, Justices Kennedy and Sotomayor suggested that the Court should reach the merits of the controversy in order th eliminate uncertainty concerning the allocation of responsibility for the conduct of foreign affairs.
A decision in this case is expected by the end of the current Supreme Court term.
David Axelrad is an attorney with Horvitz & Levy in Los Angeles. Contact David here.