Zivotofsky v. Clinton (10-699)

Oral argument: Nov. 7, 2011

Appealed from: United States Court of Appeals for the District of Columbia Circuit (July 10, 2009)

The U.S. Embassy refused to record the place of birth of Petitioner Menachem Zivotofsky as “Jerusalem, Israel” in accordance with U.S. foreign policy to refrain from expressing an official view on whether Jerusalem is part of Israel. His parents filed suit on his behalf, demanding that the State Department comply with Section 214 of the Foreign Relations Authorization Act, which requires the State Department to record the place of birth of a U.S. citizen born in Jerusalem as Israel, if the child’s legal guardians so request. The district court held that the judiciary has no authority to order the executive branch to change its foreign policy under the political question doctrine; the United States Court of Appeals for the District of Columbia Circuit affirmed this holding. Petitioner Zivotofsky (through his parents) argues that the political question doctrine does not apply because the case involves a question of statutory interpretation. Secretary of State Clinton contends that Section 214 is unconstitutional because Congress has no authority to recognize foreign sovereigns. The Supreme Court’s decision in this case will clarify the political question doctrine, and may shed light on the issue of separation of powers among the judicial, legislative, and executive branches.

Questions presented

1. Whether the “political question doctrine” deprives a federal court of jurisdiction to enforce a federal statute that explicitly directs the Secretary of State how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport.

2. Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President’s power to recognize foreign sovereigns.

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Issue

Whether a U.S. citizen born in Jerusalem can demand that the State Department record his place of birth as Jerusalem, Israel under Section 214 (d) of the Foreign Relations Authorization Act in spite of U.S. foreign policy against expressing an official view on whether Jerusalem is part of Israel.

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Facts

Since the United States recognized the state of Israel in 1948, the executive branch has remained neutral on whether Jerusalem is part of Israel. See Zivotofsky v. Secretary of State, 571 F.3d 1227, 1228 (D.C. Cir. 2009). In accordance with the President of the United States's directive on the status of Jerusalem, the State Department records the place of birth of a U.S. citizen born in Jerusalem as “Jerusalem” rather than “Jerusalem, Israel” in his passport and Consular Report of Birth. See id.

In 2002, Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003 (the “Act”). See id. Section 214 of the Act stood in stark contrast to the executive’s stance of neutrality on whether Jerusalem is part of Israel. See id. Section 214 not only recognizes Jerusalem as part of Israel, but it also identifies Jerusalem as the capital of Israel. See id. In addition, subsection 214(d) of the Act orders State Department officials to record a U.S. citizen’s place of birth as “Jerusalem, Israel” if the citizen’s legal guardians so request. See id. at 1229. However, when President George W. Bush signed the Act, he stated in the Signing Statement that Section 214 of the Act infringes the President’s authority to recognize foreign nations and that U.S. policy regarding Jerusalem had not changed. See id.

The same year Congress passed the Act, the Zivotofskys, who are both U.S. citizens, gave birth to a boy in Jerusalem and requested that the U.S. Embassy in Tel Aviv, Israel record their son’s place of birth as “Jerusalem, Israel” on his passport and Consular Report of Birth. See id. The embassy officials rejected the Zivotosfkys’ request and recorded the newborn’s place of birth as “Jerusalem,” in accordance with the State Department’s policy. See id. In September 2003, the Zivotofskys filed an action on behalf of their son, seeking declaratory and injunctive relief, and requesting that the United States District Court for the District of Columbia order the State Department to comply with Section 214(d) of the Act. See id. However, the district court dismissed the case, holding that Zivotofsky lacked standing to sue since the description of his place of birth would have no impact on his ability to use his passport. See id. at 1229. More importantly, the district court concluded that it lacked jurisdiction to decide the case, basing its decision on the political question doctrine. See id. at 1229?30. The district court reasoned that ordering the State Department to comply with Section 214 (d) would constitute an official recognition that Jerusalem is part of Israel. See id. at 1229?30.

On appeal, the United States Court of Appeals for D.C. Circuit disagreed with the district court that Zivotofsky lacked standing and remanded the case. See id. at 1230. On remand, the district court granted the Secretary of State’s motion to dismiss for lack of subject matter jurisdiction, concluding that the case involved the president’s power to recognize foreign sovereigns; the D.C. Circuit affirmed. See id. at 1230–31. Additionally, the court concluded that the President has the exclusive authority to recognize foreign sovereignty under the Constitution; thus the State Department can lawfully refuse the Zivotofskys’ request to record their son’s place of birth as “Jerusalem, Israel”. See id. The United States Supreme Court granted certiorari on May 2, 2011.

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Discussion

In this case, the Supreme Court will decide whether the State Department can lawfully refuse to comply with Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003 , and will decide which branch of the government has the authority to recognize foreign sovereignty.

Are There Foreign Policy Implications?

Petitioner Menachem Zivotofsky (through his parents) argues that the manner of recording a U.S. citizen’s place of birth on a passport does not affect U.S. foreign policy concerning the status of Jerusalem. See Brief for Petitioner, Menachem Binyamin Zivotofsky at 46–47. Zivotofsky further contends that the U.S. executive branch has acknowledged Jerusalem as part of Israel, and that no adverse diplomatic consequences have followed from this. See id. at 50. On the other hand, Secretary of State Hillary Clinton emphasizes that a passport is an important instrument in implementing foreign policy: the State Department’s description of Jerusalem as a U.S. citizen’s place of birth expresses U.S. policy regarding the status of Jerusalem. See Brief for Respondent Hillary Rodham Clinton, Secretary of State at 31, 38.

Zivotofsky maintains that, considering the history of the place of birth entry and various government descriptions of its function, it is safe to conclude that the purpose of the place of birth entry on a passport is to identify the holder of the passport, in a manner similar to the date of birth. See Brief for Petitioner at 49. Zivotofsky notes that State Department surveys of foreign governments indicate that the place of birth entry carries no foreign policy implications, and that many foreign governments do not consider the place of birth on a U.S. citizen’s passport to be material, and do not object to the removal of the place of birth entry. See id. Zivotofsky also points out that, due to clerical errors, the State Department has identified the place of birth of some American citizens born in Jerusalem as Israel, and that so far there have been no negative repercussions. See id. Furthermore, the Zionist Organization of America argues that the executive branch itself does not consistently follow its own policy of refraining from recognizing Jerusalem as part of Israel. See Brief of Amicus Curiae The Zionist Organization of America in Support of Petitioner at 4. The Zionist Organization of America alleges that many departments and agencies in the executive branch, including the Department of Defense, frequently refer to Jerusalem as part of Israel. See id. at 6–8.

Americans for Peace Now (“APN”) argues that implementing Section 214(d) represents a significant shift in U.S. foreign policy regarding Jerusalem’s territorial status. See Brief of Amicus Curiae Americans for Peace Now in Support of Respondent at 29. The APN contends that, if the U.S. government allowed a U.S. citizen to record his place of birth as “Jerusalem, Israel”, it would implicitly recognize Israel’s sovereignty over Jerusalem for the first time in history. See id.. The APN argues that a drastic shift from the U.S.’s long-held neutral stance in Jerusalem’s territorial dispute will pose national security issues, and will also jeopardize the fragile peace negotiations between Palestinian and Israeli leaders. See id. at 30. The APN asserts that the Act provoked passionate and angry criticism from the Arab world when it was passed in 2002. See id. at 27. APN contends that implementing Section 214(d) would seriously undermine U.S. credibility as an impartial facilitator in the Palestinian and Israeli peace negotiations, and would damage or delay a permanent peaceful resolution to the Arab-Israeli dispute. See id. at 30–31.

Does the Implementation of §214(d) Discriminate Against Israeli-Americans?

Zivotofsky contends that the U.S. government discriminates against Israeli-Americans because it gives Palestinian-Americans the option to omit Israel from their place of birth, even if they were born in a city that the U.S. government has already recognized as part of Israel. See Brief for Petitioner at 48. Zivotofsky argues that similar courtesy and respect for an individual’s ideological commitments is not afforded to citizens who want to include Israel as their place of birth on their passports. See id. at 53–54. On the other hand, Secretary Clinton points out that the State Department’s policy regarding U.S. citizens born in Jerusalem applies equally to both Israeli and Palestinian Americans; the State Department does not recognize any state’s sovereignty over Jerusalem. See Brief for Respondent at 54–55.

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Analysis

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. See Brief 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. See Brief 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. See Brief 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. See Brief 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. See id. 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. See Brief 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. See id. 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. See Brief 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. See id. 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. See id. at 40–41.

Members of Congress argue that Section 214(d) is lawful passport legislation under Congress’s immigration and foreign commerce powers. See Brief 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. See Brief 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. See id. 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. See id. 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. See id. at 52–53.

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Conclusion

In this case, the Supreme Court will decide whether Section 214(d) of the Foreign Relations Authorization Act, which permits the State Department to designate the place of birth of a U.S. citizen born in Jerusalem as Israel, if the citizen so requests, infringes upon the President’s authority to recognize foreign sovereigns. Respondent Secretary of State Clinton maintains that, because the Constitution granted the exclusive power to recognize foreign sovereigns to the executive branch, Zivotofsky's claim under Section 214(d) presents a non-justiciable political question. Petitioner Zivotofsky (through his parents) argues that the political question doctrine does not apply where the courts are asked to interpret and enforce a statute duly enacted by Congress, and where that statute is a constitutional exercise of Congress' power and does not infringe on the President's authority. A decision in favor of Zivotofsky may further strain delicate U.S. foreign relations in the Middle East and trigger judicial involvement in foreign affairs. A judgment for Secretary Clinton may be perceived as an unnecessary expansion of the political question doctrine, and a further increase of the President’s powers.

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Authors

Prepared by: Angela Chang and Tian Wang

Edited by: Natanya DeWeese

Additional Sources

Edited by: