The return of classical political question doctrine in Zivotofsky ex rel. Zivotofsky V. Clinton.

AuthorSzurkowski, Carol

During his Supreme Court confirmation hearings, Chief Justice Roberts famously said, "I will remember that it's my job to call balls and strikes, and not to pitch or bat." (1) But he went on to draw another comparison between judges and umpires that is less well-remembered: "The role of an umpire and a judge is critical. They make sure everybody plays by the rules...." (2) In making this remark, Chief Justice Roberts alluded to his belief that the judiciary has not only the ability to interpret the law, but the obligation to resolve disputes; it has a "duty ... to say what the law is," (3) as Chief Justice John Marshall so eloquently stated.

In 2012, the Court reaffirmed its commitment to this obligation in Zivotofsky ex rel. Zivotofsky v. Clinton, (4) in which the Court rejected the argument that whether an American citizen born in Jerusalem can enforce his statutory right to have "Israel" listed as his birthplace on his passport is a nonjusticiable political question. (5) A judge will dismiss a case under the political question doctrine when he believes its resolution properly belongs to the other, political branches of the government. In its "classical" form, the political question doctrine was invoked to dismiss cases only when the text and structure of the Constitution itself demanded it. Prudential considerations, however, gradually became intermingled with textual ones, and courts began to dismiss cases for a combination of textual and prudential reasons. Then, in the 1962 case Baker v. Carr, (6) the Supreme Court laid out a six-factor test for identifying cases that present nonjusticiable political questions:

Prominent on the surface of any case held to involve a political question is found 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; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (7) This test became the touchstone for federal courts' political question analysis and accelerated the lower courts' trend toward the prudential political question doctrine by legitimating both textual and prudential concerns as independent bases for dismissal. But since Baker, the Supreme Court has retreated from the prudential political question doctrine, while lower federal courts, particularly in cases implicating foreign affairs powers, have increased its use. The Court seized the opportunity presented by Zivotofsky to reassert the classical, pre-Baker interpretation of the political question doctrine, implicitly but conspicuously disavowing the prudential theory even in foreign affairs cases. Zivotofsky thus displaces Baker's six-factor test and substitutes classical political question analysis in its place.


    In 2002, Congress passed the Foreign Relations Authorization Act for the Fiscal Year 2003, (8) which contains a number of directives aimed at solidifying the United States' recognition of Jerusalem as the capital of Israel. These include a requirement that the Secretary of State list Israel as the place of birth for any person born in the city of Jerusalem who so requests. (9)

    A few months after the statute was enacted, Menachem Binyamin Zivotofsky was born in Jerusalem to two American parents, and his mother filed an application on his behalf to obtain a United States passport and Consular Report of Birth. (10) On the application, she listed his place of birth as "Jerusalem, Israel." (11) Because of the State Department's longstanding policy of taking no position on whether Jerusalem is a part of Israel, (12) officials informed Mrs. Zivotofsky that the Department could list only "Jerusalem" and not "Israel" on these documents. (13)

    Zivotofsky, through his parents, sued the Secretary of State in September 2003, seeking an order directing the State Department to issue him a passport and Report of Birth listing "Jerusalem, Israel" as his place of birth. (14) The United States District Court for the District of Columbia dismissed the suit on two alternative grounds: first, that Zivotofsky lacked Article III standing to sue the Secretary of State, (15) and second, that the case presented a nonjusticiable political question. (16) The Court of Appeals for the District of Columbia Circuit reversed the trial court's ruling on Article III standing (17) and remanded for a fuller development of the record on the political question determination. (18) On remand and after further briefing, the D.C. District Court again held that the case did present a nonjusticiable political question, (19) relying on Baker's six-factor test as dispositive. (20) The D.C. Circuit affirmed this holding, although its analysis rested exclusively on the first Baker factor: whether resolution of the issue "ha[d] been committed to the political branches by the text of the Constitution." (21)

    The Supreme Court granted certiorari and, in March 2012, vacated the D.C. Circuit's opinion and remanded the case for decision on the merits. (22) Writing for the majority, Chief Justice Roberts held that the case did not present a nonjusticiable political question. (23) The Chief Justice defined the political question doctrine as a "narrow" exception to the general rule that the judiciary has the "responsibility to decide cases properly before it." (24) Avoiding any reliance on the Baker test, but restating its first two factors, the Court held that a political question exists "'where there is 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."' (25) The D.C. Circuit, the Chief Justice explained, had conflated a policy issue properly left to the political branches--whether Jerusalem is the capital of Israel--with the legal question before it--whether Zivotofsky may enforce his statutory right to have Israel listed on his passport. (26) Adjudicating this claim would entail nothing more than deciding whether the statute unconstitutionally encroaches on the President's foreign affairs power, and therefore, whether the individual right it confers may be vindicated. (27) Enforcing the separation of powers and individual rights, the Chief Justice wrote, is not only within the courts' province, it is "what courts do." (28) Therefore, the case must be decided on the merits. (29)

    Justice Sotomayor, joined in part by Justice Breyer, wrote separately to concur in the judgment, expressing concern that the Court had overcome the political question hurdle too quickly. (30) Justice Sotomayor wrote that analysis of the Baker factors was missing from the Court's opinion, and she engaged in a detailed review of the Court's post-Baker political question jurisprudence. (31) She separated the Baker factors into three categories: textual commitment to a coordinate political branch, (32) "circumstances in which a dispute calls for decisionmaking beyond courts' competence," (33) and "circumstances in which prudence may counsel against a court's resolution of an issue presented." (34) Largely for the reasons identified in Chief Justice Roberts' majority opinion, Justice Sotomayor agreed that this case did not present a political question under the first Baker factor--the only factor the D.C. Circuit addressed. (35) Justice Sotomayor, however, emphasized the continuing vitality of her third category--prudential considerations-warning that though cases meriting dismissal on the basis of the final three Baker factors alone are rare, the possibility of such a dismissal is an important relic of the common law backdrop against which Article Ill was written. (36)

    Justice Alito also wrote a separate, brief concurring opinion, (37) outlining the respective cases for Congressional and Executive control over the issuance of passports (38) and concluding that "[d]elineating the precise dividing line between the powers of Congress and the President with respect to the contents of a passport is not an easy matter, but ... it does not constitute a political question that the Judiciary is unable to decide." (39)

    Justice Breyer was the lone dissenter. (40) He joined the portion of Justice Sotomayor's concurrence devoted to the continuing importance of the Baker factors, but believed that in Zivotofsky, those...

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