Zivotofsky v. Clinton

Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003 provides instructions to the Secretary of State for documenting the birthplace of U.S. citizens born in Jerusalem. Under Section 214(d) of the Act, the State Department is instructed to record the birthplace of a Jerusalem-born U.S. citizen as “Israel” in passports and birth certification documents, if the individual so requests. See id. When the U.S. Embassy in Tel Aviv refused to record Petitioner Menachem Zivotofsky’s birthplace as “Jerusalem, Israel”, his parents filed suit on his behalf against Secretary of State Hillary Rodham Clinton and sought an injunction to enforce the statute. See id. at 1229. The United States Court of Appeals for the District of Columbia Circuit affirmed the district court’s dismissal of the complaint, and held that the case raises a non-justiciable political question, precluding the court from hearing the case. See id. at 1233. Zivotofsky (through his parents) argues that the case does not involve a political question because the claim arises under Section 214(d), a federal statute that does not infringe on the President’s authority and that is appropriate passport legislation. SeeBrief for Petitioner, Menachem Binyamin Zivotofsky, at 25, 34, 52. Secretary Clinton contends that Zivotofsky’s claim involves a non-justiciable political question because the statute directly opposes the President’s Jerusalem-birthplace policy—an area that has been constitutionally committed to the President under Article II’s recognition clause. SeeBrief for Respondent, Hillary Rodham Clinton, Secretary of State, at 29, 37, 41. The Supreme Court will address whether the political question doctrine applies in this case, and whether Section 214(d) impermissibly interferes with the President’s power to recognize foreign sovereigns.

Does the Political Question Doctrine Apply?

Petitioner Zivotofsky argues that the political question doctrine does not apply because the Court is being asked to enforce a federal statute that was duly enacted by Congress and signed by the President. SeeBrief for Petitioner at 25. According to Zivotofsky, the political question doctrine applies to claims involving questions that are “beyond judicial competence,” cases where the constitution vests sole authority to decide a matter in another political branch or where a court lacks competence to decide the question. See id. at 26–27. Zivotofsky argues that the interpretation and enforcement of a federal statute is not beyond judicial competence; rather it is within the province and duty of the judiciary to enforce and interpret the statute. See id. at 28–29. Zivotofsky further contends that, because Congress already resolved the political question when it enacted Section 214(d), the Court does not need to examine the case in light of the six factors outlined in Baker v. Carr, which determine whether a case presents a political question. See id. at 29.

On the other hand, Respondent Clinton emphasizes the separation of powers concern underlying the political question doctrine, and argues that the doctrine forbids the judiciary from resolving issues that have been constitutionally delegated to the political branches. SeeBrief for Respondent at 41. Secretary Clinton identifies Baker v. Carr as the relevant framework for determining whether a case involves a political question, asserting that Baker’s first factor – whether the case involves an issue that is constitutionally committed to another political branch – is directly relevant. See id. at 42. Secretary Clinton further contends that, because the Constitution granted the President exclusive authority to recognize foreign sovereigns and because the Jerusalem birthplace policy at issue is an exercise of that power, deciding Zivotofsky’s claim would require judicial review of a topic that has been constitutionally committed to the executive branch. See id. at 49. Secretary Clinton concludes that the political question doctrine applies and prohibits a court from hearing this case. See id. at 49–50.

In response, Zivotofsky cites Japan Whaling Association v. American Cetacean Society, in which the Supreme Court declined to apply the political question doctrine to a case involving the interpretation of a federal statute that would significantly affect relations with Japan. See Brief for Petitioner at 31–32. Secretary Clinton counters that Japan Whaling is not on point because that case did not involve a statute interfering with authority constitutionally committed to one political branch. See Brief for Respondent at 47.

Does the President Have Exclusive Authority to Recognize Foreign Sovereigns?

Zivotofsky argues that the President’s authority to recognize foreign sovereigns is not exclusive. See Brief for Petitioner at 36. Zivotofsky contends that the Founding Fathers did not intend to give the President exclusive authority to recognize foreign sovereigns through the “Receive Ambassadors Clause” in Article II, § 3 of the Constitution. See id. at 37–38. Rather, Zivotofsky argues, the duty to receive ambassadors and foreign ministers was meant to be a ceremonial task. See id. at 37.

In response, Secretary Clinton argues that the President has established the exclusive power to recognize foreign sovereigns through the continual exercise of that power; this establishment is supported by Congress’s deference, and the Supreme Court’s acceptance of the President’s power. See Brief for Respondent at 18. The Secretary further argues that the President’s responsibility under the Receive Ambassadors Clause implies a power to determine which ambassadors and public ministers to receive, necessarily giving the President authority to decide which foreign sovereigns the government will recognize. Seeid. at 19.

In addition, Zivotofsky argues that no case clearly supports the proposition that the President has exclusive authority to recognize foreign sovereigns; at most, courts recognize that this power is shared among the two political branches. See Brief for Petitioner at 38–40. Zivotofsky points to the Hare-Hawes-Cutting Act of 1933, where Congress declared the independence of the Philippines, as an example of Congress’s authority to recognize foreign sovereigns. See id. at 39.

However, Secretary Clinton argues that the Hare-Hawes-Cutting Act did not involve the power to recognize foreign sovereigns; it was instead an exercise of Congress’s constitutional power to legislate in relation to U.S. territory—in this case to relinquish an interest in the Philippines. SeeBrief for Respondent at 27–28. Secretary Clinton identifies past attempts by members of Congress to recognize foreign sovereigns, and notes that other members of Congress and the President have objected to those attempts on the grounds that the President has exclusive authority to recognize sovereigns. See id. at 21–23. Lastly, Secretary Clinton maintains that the Court has repeatedly affirmed the executive’s exclusive recognition power, from the early days of Justice John Marshall and Justice Joseph Story to more recent decisions. Seeid. at 24–25.

Does Section 214(d) of the Foreign Relations Authorization Act Impermissibly Infringe on the President’s Exclusive Authority to Recognize Foreign Sovereigns?

Petitioner Zivotofsky argues that, because the President does not have exclusive authority to recognize foreign sovereigns, Section 214(d) is constitutional and appropriate passport legislation. SeeBrief for Petitioner at 52–53. Zivotofsky argues that, even if the President does have the exclusive authority to recognize foreign sovereigns, Section 214(d) does not infringe on that power because the U.S. has never recognized the West Bank, the Gaza Strip, or Palestine as foreign states. Seeid. at 43. Zivotofsky contends that exclusive authority to recognize foreign sovereigns does not imply exclusive authority to determine the territorial boundaries of those foreign sovereigns; therefore, Congress is not prohibited from regulating the recording of Jerusalem-born citizens’ birthplace in passports and other official documents. Seeid. at 40–41.

Members of Congress argue that Section 214(d) is lawful passport legislation under Congress’s immigration and foreign commerce powers. SeeBrief of Amici Curiae Members of the United States Senate and the United States House of Representatives in Support of Petitioner at 9. Members of Congress further assert that Section 214(d) does not intrude on the President’s recognition power, as recognition of a foreign government does not equate to complete authority over matters related to disputed foreign territories. See id. at 19, 22.

On the other hand, Secretary Clinton argues that the State Department’s Jerusalem birthplace policy is an exercise of the President’s exclusive authority to recognize foreign sovereigns and to determine the content of passports, which may further the President’s foreign policy. SeeBrief for Respondent at 37. Secretary Clinton explains that the State Department’s refusal to record “Israel” as the place of birth of U.S. citizens born in Jerusalem is in accordance with the President’s policy of not recognizing any state sovereignty over Jerusalem. Seeid. at 37–38. The Secretary maintains that Section 214(d) impermissibly infringes on the President’s exclusive recognition power because the statute is a direct attempt to overturn the President’s policy regarding Jerusalem. Seeid. at 53. Secretary Clinton concludes that, because Section 214(d) directly legislates on a subject reserved exclusively for the executive branch, the Court should hold the statute unconstitutional. Seeid. at 52–53.