There's no such thing as a political question of statutory interpretation: the implications of Zivotofsky v. Clinton.

• Author: Michel, Chris

The political question doctrine poses a paradox. Courts increasingly dismiss claims as political questions, especially in sensitive fields like foreign affairs and national security. (1) Yet the principles underlying the doctrine remain "murky and unsettled," (2) an "enigma" to courts and commentators alike. (3) One scholar famously questioned whether political questions even exist. (4)

The Supreme Court recently offered a partial answer. In Zivotofsky ex tel. Zivotofsky v. Clinton, the Court held--in contrast to two lower courts--that a claim under a statute entitling American passport holders born in Jerusalem to designate their birthplace as "Israel" did not constitute a political question, (5) The few commentators who have discussed Zivotofsky have urged a narrow reading. (6) This Comment argues instead that the case supports a sweeping and significant rule: a claim to a federal statutory right can never present a political question.

Part I probes the definition of political questions and the function of statutes in the doctrine. Part II analyzes the Court's reasoning in Zivotofsky. Part III extends that reasoning to establish the principle that statutory claims can never present political questions. While lower court judges suggested partial versions of this position before Zivotofsky, (7) this Comment marks the first attempt to apply the argument to all statutory cases. I conclude that a rule against statutory political questions injects needed doctrinal clarity and vindicates fundamental values of separation of powers, access to courts, and executive compliance with the law.

1. THE ROLE OF STATUTES IN THE POLITICAL QUESTION DOCTRINE

The political question doctrine debuted in Marbury v. Madison. (8) Chief Justice Marshall explained that when "the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable." (9) One quintessential area of presidential discretion is the appointment of judicial officers, such as William Marbury. (10) Yet the Court declined to dismiss Marbury's claim as a political question. The reason was that Congress had enacted a statute restricting the President's discretion by entitling Justices of the Peace to "continue in office for five years." (11) Thus, an executive act that would have presented a political question in the absence of a statute became judicially reviewable in the presence of a statute.

Statutory constraints on the executive also proved decisive in other early cases. (12) By contrast, no case in which the Court recognized a political question stemmed from a statute. Political questions arose only from constitutional or common law challenges to actions within the unquestioned discretion of a political branch, such as the President's recognition of a foreign government. (13)

Modern political questions have coalesced into two primary categories. (14) First, courts will not adjudicate claims arising from "a textually demonstrable constitutional commitment of the issue to a coordinate political department." (15) The Court has applied this principle to claims under the Republican Guarantee Clause, (16) the Impeachment Trial Clause, (17) and, in dicta, Congress's power to examine the qualifications of its members. (18) Second, courts will not adjudicate claims that present "a lack of judicially discoverable and manageable standards." (19) The Court has invoked this rationale to dismiss suits challenging a state's procedures for ratifying a constitutional amendment (20) and seeking to establish protocols for the National Guard. (21) But in no case has the Supreme Court ever found a political question arising from a statutory claim. (22)

By contrast, lower federal courts have increasingly embraced statutory political questions, (23) especially as statutory claims against the executive multiplied after September H, 2001. (24) This approach has provoked some disagreement, most notably a concurring opinion by Judge Kavanaugh denouncing the D.C. Circuit's invocation of the political question doctrine in a statutory case involving the Clinton Administration's bombing of a pharmaceutical factory in Sudan. (25) Yet the trend has persisted. (26) Scholars have nonetheless largely avoided the issue of statutory political questions, focusing instead on broader puzzles about the doctrine's scope. (27) Two recent casebooks ask rhetorically whether the doctrine applies to statutory claims, (28) but no answer arrived--until Zivotofsky reached the Supreme Court.

2. CLARIFYING THE DOCTRINE: ZIVOTOFSKY V. CLINTON

   Menachem Binyamin Zivotofsky's unlikely role in the political question drama began on October 17, 2002, when he was born to American-citizen parents in a Jerusalem hospital. (29) Three weeks earlier, Congress had passed a law providing that "[f]or purposes of the ... issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary of State shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel." (30) This statutory directive contradicted official State Department policy that Jerusalem's status remains unresolved. President Bush signed the bill but declined to enforce the provision, section 214(d), because it would "impermissibly interfere with the President's constitutional authority to ... determine the terms on which recognition is given to foreign states." (31)

   Zivotofsky's parents sued to enforce his statutory rights. The district court accepted the government's argument that the claim presented a political question, and the D.C. Circuit affirmed. (32) Applying the "textual commitment" branch of the doctrine, the court of appeals explained that "[t]he President's exercise of the recognition power granted solely to him by the Constitution cannot be reviewed by the courts." (33) The court noted that "[w]e have never relied on the presence or absence of a statutory challenge in deciding whether the political question doctrine applies," and concluded that "Zivotofsky's claim presents a nonjusticiable political question because it trenches upon the constitutionally committed recognition power." (34) In a concurring opinion, Judge Edwards disagreed with the political question rationale and argued that the court should invalidate the statute on the merits. (35)

   The Supreme Court reversed, holding by an eight-to-one margin that Zivotofsky's statutory claim did not present a political question. (36) Chief Justice Roberts's opinion pointedly explained that the "existence of a statutory right ... is certainly relevant to the Judiciary's power to decide Zivotofsky's claims," and chided the D.C. Circuit for "not even mention[ing] [section] 214(d) until the fifth of its six paragraphs of analysis." (37) Because neither party disputed the interpretation of the statute, "the only real question for the courts [was] whether the statute is constitutional." (38) Because the lower courts had not answered this question, the Court remanded the case to the D.C. Circuit. (39) (A year later, the court of appeals held S 214(d) unconstitutional on the merits. (40)

   The Court never stated categorically that statutory claims could not present political questions. But Justices Sotomayor and Alito felt obliged to write separate opinions clarifying their view that, in Justice Alito's words, "determining the constitutionality of an Act of Congress may present a political question" in some cases. (41) Justice Breyer's solo dissent would have found a political question in Zivotofsky based on "prudential considerations" including the sensitivity of Middle East diplomacy and the Court's lack of foreign policy expertise. (42)

3. THE RULE AGAINST STATUTORY POLITICAL QUESTIONS

   Given the...