Instant Analysis: Zivotofsky v. Clinton

March 26th, 2012

Well, no one else is reading this case today, although frankly political question doctrine interests me more than the Anti-Injunction Act. Anyway, the Court 8-1, found that the political question doctrine does not bar review. Only Breyer, the minimalist, dissented.

Chief Justice Roberts Majority Opinion

Here is how the Chief frames the issue:

The lower courts ruled that this case involves a politicalquestion because deciding Zivotofsky’s claim would forcethe Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” 511 F. Supp. 2d, at 103. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under§214(d), to choose to have Israel recorded on his passport as his place of birth. . . .

The existence of a statutory right, however, is certainlyrelevant to the Judiciary’s power to decide Zivotofsky’sclaim. The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutoryright. To resolve his claim, the Judiciary must decide ifZivotofsky’s interpretation of the statute is correct, andwhether the statute is constitutional. This is a familiar judicial exercise.

When in doubt, cite Marbury:

Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts iswhether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognizedthat when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at
177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.” INS v. Chadha, 462 U. S. 919, 943 (1983).
In this case, determining the constitutionality of §214(d)involves deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law must be invalidated and Zivotofsky’s case should be dismissed for failure to state a claim. If, on the other hand, the statute does not trench on the President’s powers, then the Secretary must be ordered to issue Zivotofsky a passport that complies with §214(d). Either way,the political question doctrine is not implicated. “No policy underlying the political question doctrine suggeststhat Congress or the Executive . . . can decide the constitutionality of a statute; that is a decision for the courts.” Id., at 941–942.

So, the issue is the constitutionality of the statute, not foreign relations.

But there is, of course, no exclusive commitment to the Executive of the power to determine the constitutionality of a statute. The Judicial Branch appropriately exercises that authority, including in a case such as this,where the question is whether Congress or the Executive is “aggrandizing its power at the expense of another branch.” . . .

Framing the issue as the lower courts did, in terms of whether the Judiciary may decidethe political status of Jerusalem, certainly raises those concerns. They dissipate, however, when the issue isrecognized to be the more focused one of the constitutionality of §214(d). Indeed, both sides offer detailed legalarguments regarding whether §214(d) is constitutional inlight of powers committed to the Executive, and whetherCongress’s own powers with respect to passports must beweighed in analyzing this question

The Court shooed away citations to George Washington’s practice as President and the Federalist–if you can make a legal argument, then the courts can handle it!:

Recitation of these arguments—which sound in familiar principles of constitutional interpretation—is enough to establish that this case does not “turn on standards that defy judicial application.” Baker, 369 U. S., at 211. Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case

Text, structure, history. Isn’t that Breyer’s approach, minus “prinicples.”

But the Court won’t deal with it in the absence of a record below (Good!):

Because the District Court and the D. C. Circuit believed that review was barred bythe political question doctrine, we are without the benefit of thorough lower court opinions to guide our analysis of the merits. Ours is “a court of final review and not first view.” Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per curiam) (internal quotation marks omitted). Ordinarily, “we do not decide in the first instance issues not decided below.” National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999). In particular, when we reverse on a threshold question, wetypically remand for resolution of any claims the lowercourts’ error prevented them from addressing. See, e.g., Bond v. United States, 564 U. S. ___, ___ (2011) (slip op.,at 1–2) (reversing the Court of Appeals’ determination on standing and remanding because the “merits of petitioner’s challenge to the statute’s validity are to be considered, in the first instance, by the Court of Appeals”). We see no reason to depart from this approach in this case. Havingdetermined that this case is justiciable, we leave it to thelower courts to consider the merits in the first instance.


Sotomayor, Concurring

Sotomayor concurred in part, and concurred in judgment. Breyer, in dissent, joined Part I of her opinion:

As this case illustrates, the proper application of Baker’s six factors has generated substantial confusion in the lower courts. I concur in the Court’s conclusion that this case does not present a political question. I write separately, however, because I understand the inquiry required by the political question doctrine to be more demanding than that suggested by the Court.

Here are Sotomayor’s views on Baker v. Carr:

In my view, the Baker factors reflect three distinct justifications for withholding judgment on the merits of a dispute. When a case would require a court to decide anissue whose resolution is textually committed to a coordinate political department, as envisioned by Baker’s first factor, abstention is warranted because the court lacks authority to resolve that issue. See, e.g., Nixon v. United States, 506 U. S. 224, 229 (1993) (holding nonjusticiable the Senate’s impeachment procedures in light of Article I’s commitment to the Senate of the “‘sole Power to try all Impeachments’”); see also Marbury v. Madison, 1 Cranch 137, 165–166 (1803) (“By the constitution of the United States, the president is invested with certain importantpolitical powers, in the exercise of which he is to use his own discretion, and is accountable only to his countryin his political character, and to his own conscience”). In

such cases, the Constitution itself requires that anotherbranch resolve the question presented.
The second and third Baker factors reflect circumstances in which a dispute calls for decisionmaking beyondcourts’ competence. “‘The judicial Power’ created by Article III, §1, of the Constitution is not whatever judges choose to do,” but rather the power “to act in the manner traditional for English and American courts.” Vieth v. Jubelirer, 541 U. S. 267, 278 (2004) (plurality opinion).That traditional role involves the application of somemanageable and cognizable standard within the competence of the Judiciary to ascertain and employ to the facts of a concrete case. When a court is given no standard bywhich to adjudicate a dispute, or cannot resolve a dispute in the absence of a yet-unmade policy determinationcharged to a political branch, resolution of the suit is be- yond the judicial role envisioned by Article III. See, e.g., Gilligan v. Morgan, 413 U. S. 1, 10 (1973) (“[I]t is difficult to conceive of an area of governmental activity in whichthe courts have less competence” than “[t]he complex,subtle, and professional decisions as to the composition,training, equipping, and control of a military force”); Vieth, 541 U. S., at 278 (“One of the most obvious limitationsimposed by [Article III] is that judicial action must begoverned by standard . . . ”). This is not to say, of course,that courts are incapable of interpreting or applyingsomewhat ambiguous standards using familiar tools of statutory or constitutional interpretation. But where an issue leaves courts truly rudderless, there can be “nodoubt of [the] validity” of a court’s decision to abstain fromjudgment. Ibid.

The final three Baker factors address circumstances in which prudence may counsel against a court’s resolution of an issue presented. Courts should be particularly cautious before forgoing adjudication of a dispute on the basis thatjudicial intervention risks “embarrassment from multifar

ious pronouncements by various departments on one question,” would express a “lack of the respect due coordinate branches of government,” or because there exists an“unusual need for unquestioning adherence to a politicaldecision already made.” 369 U. S., at 217. We have repeatedly rejected the view that these thresholds are met whenever a court is called upon to resolve the constitutionality or propriety of the act of another branch of Government. See, e.g., United States v. Munoz-Flores, 495
U. S. 385, 390–391 (1990); Powell v. McCormack, 395 U. S. 486, 548, 549 (1969). A court may not refuse to adjudicatea dispute merely because a decision “may have significant political overtones” or affect “the conduct of this Nation’s foreign relations,” Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221, 230 (1986). Nor may courtsdecline to resolve a controversy within their traditional competence and proper jurisdiction simply because thequestion is difficult, the consequences weighty, or the potential real for conflict with the policy preferences of the political branches. The exercise of such authority is among the “gravest and most delicate dut[ies] that this Court is called on to perform,” Blodgett v. Holden, 275
U. S. 142, 148 (1927) (Holmes, J., concurring), but it isthe role assigned to courts by the Constitution. “Questions may occur which we would gladly avoid; but we cannotavoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821).

A zone of prudence? So Jacksonian (Robert, not Andrew).

Sotomayor is not a fan of Roberts’s text, structure and history approach (tacictly rejecting some originalist arguments):

Second, the Court suggests that this case does not implicate the political question doctrine’s concern with issuesexhibiting “‘a lack of judicially discoverable and manageable standards,’” ante, at 8, because the parties’ argumentsrely on textual, structural, and historical evidence of the kind that courts routinely consider. But that was equallytrue in Nixon, a case in which we found that “the use of the word ‘try’ in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s actions.” 506 U. S., at 230. We reached that conclusion even though the parties’ briefs focused upon the text of theImpeachment Trial Clause, “the Constitution’s draftinghistory,” “contemporaneous commentary,” “the unbroken practice of the Senate for 150 years,” contemporary dictionary meanings, “Hamilton’s Federalist essays,” and the practice in the House of Lords prior to ratification. Such evidence was no more or less unfamiliar to courts than that on which the parties rely here.

Soto approaches the outcome differently. Here is how she frames it (Breyer does not join this part):

In my view, it is not whether the evidence upon which litigants rely is common to judicial consideration that determines whether a case lacks judicially discoverable and manageable standards. Rather, it is whether that evidence in fact provides a court a basis to adjudicatemeaningfully the issue with which it is presented. The answer will almost always be yes, but if the parties’ tex- tual, structural, and historical evidence is inapposite orwholly unilluminating, rendering judicial decision no more than guesswork, a case relying on the ordinary kinds ofarguments offered to courts might well still present justiciability concerns.


Alito, Concurring in Judgment

Alito writes separately to address that Congress does have the power to regulate the content of passports:

Powers conferred on Congress by the Constitution certainly give Congress a measure of authority to prescribethe contents of passports and CRBAs. The Constitution gives Congress the power to regulate foreign commerce, Art. I, §8, cl. 3, and this power includes the power to regulate the entry of persons into this country, see Henderson v. Mayor of New York, 92 U. S. 259, 270–271 (1876). The Constitution also gives Congress the power to make a“uniform Rule of Naturalization,” Art. I, §8, cl. 4, and pursuant to this power, Congress has enacted laws concerning the citizenship of children born abroad to parentswho are citizens of this country, see United States v. Wong Kim Ark, 169 U. S. 649, 688 (1898). These powers allow Congress to mandate that identifying information be in- cluded in passports and CRBAs.

The President also has a measure of authority concerning the contents of passports and CRBAs. The President has broad authority in the field of foreign affairs, see, e.g., American Ins. Assn. v. Garamendi, 539 U. S. 396, 414 (2003), and, historically, that authority has included the power to issue passports, even in the absence of any formal congressional conferral of authority to do so. See Haig v. Agee, 453 U. S. 280, 293 (1981) (explaining that “[p]rior to 1856, when there was no statute on the subject,the common perception was that the issuance of a passport was committed to the sole discretion of the Executive and that the Executive would exercise this power in the interests of the national security and foreign policy of the United States”). We have described a passport as “a letterof introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer.” Id., at 292.

It seems Alito would find in favor of petitioners.

Breyer’s Dissent

The best Breyer dissent is when he dissents alone. OK, breath Josh. Go for it.

 First, the issue before us arises in the field of foreign affairs. (Indeed, the statutory provision before us is asubsection of a section that concerns the relation between Jerusalem and the State of Israel.

Second, if the courts must answer the constitutional question before us, they may well have to evaluate the foreign policy implications of foreign policy decisions.

Breyer calls out the elephant in the room:

Were the statutory provision undisputedly concerned only with purely administrative matters (or were its enforcement undisputedly to involve only major foreign policy matters), judicial efforts to answer the constitu- tional question might not involve judges in trying to answer questions of foreign policy. But in the Middle East, administrative matters can have implications that extendfar beyond the purely administrative. Political reactions in that region can prove uncertain. And in that context it may well turn out that resolution of the constitutional argument will require a court to decide how far the statute, in practice, reaches beyond the purely administrative, determining not only whether but also the extent to which enforcement will interfere with the President’s ability to make significant recognition-related foreign policy decisions.

Breyer explores the role of the courts in such an inquiry, keeping alive his ability to scrutinize laws affecting “bodily integrity”—read abortion.

Third, the countervailing interests in obtaining judicialresolution of the constitutional determination are not particularly strong ones. Zivotofsky does not assert the kind of interest, e.g., an interest in property or bodilyintegrity, which courts have traditionally sought to protect. See, e.g., Ingraham v. Wright, 430 U. S. 651, 673– 674 (1977) (enduring commitment to legal protection ofbodily integrity). Nor, importantly, does he assert an interest in vindicating a basic right of the kind that theConstitution grants to individuals and that courts traditionally have protected from invasion by the other branchesof Government. And I emphasize this fact because theneed for judicial action in such cases can trump the foreignpolicy concerns that I have mentioned.

Breyer sees Zivotofsky’s interest as “ideological.” That’s a new one for me.

The interest that Zivotofsky asserts, however, is akin to an ideological interest. See Brief for Petitioner 54 (citizenborn in Jerusalem, unlike citizen born in Tel Aviv or Haifa, does not have the “option” to “specify or suppress the name of a country that accords with his or her ideology”);see also id., at 19 (State Department policy bars citizens born in Jerusalem “from identifying their birthplace in a manner that conforms with their convictions”). And insofar as an individual suffers an injury that is purely ideological, courts have often refused to consider the matter,leaving the injured party to look to the political branchesfor protection. E.g., Diamond v. Charles, 476 U. S. 54, 66– 67 (1986); Sierra Club v. Morton, 405 U. S. 727, 739–740 (1972). This is not to say that Zivotofsky’s claim is unimportant or that the injury is not serious or even that it is purely ideological. It is to point out that those suffering somewhat similar harms have sometimes had to look to the political branches for resolution of relevant legal issues. Cf. United States v. Richardson, 418 U. S. 166, 179 (1974); Laird v. Tatum, 408 U. S. 1, 15 (1972).

And, obviously, Zivotofsky could work this out through political branches (it seems that two Presidents have ignored this statute, so I am not sure if this argument flies).

Fourth, insofar as the controversy reflects different foreign policy views among the political branches of Government, those branches have nonjudicial methods of working out their differences. Cf. Goldwater, 444 U. S., at 1002, 1004 (Rehnquist, J., joined by Burger, C. J., and Stewart and Stevens, JJ., concurring in judgment) (finding in similar fact strong reason for Judiciary not to decidetreaty power question). The Executive and LegislativeBranches frequently work out disagreements through ongoing contacts and relationships, involving, for example, tee hearings, and a host of more informal contacts, which,taken together, ensure that, in practice, Members of Congress as well as the President play an important role in the shaping of foreign policy. Indeed, both the Legislative Branch and the Executive Branch typically understandthe need to work each with the other in order to create effective foreign policy. In that understanding, those related contacts, and the continuous foreign policy-related relationship lies the possibility of working out the kind ofdisagreement we see before us. Moreover, if application of the political-question “doctrine ultimately turns, as Learned Hand put it, on ‘how importunately the occasiondemands an answer,’” Nixon, 506 U. S., at 253 (Souter, J.,concurring in judgment) (quoting L. Hand, The Bill ofRights 15 (1958)), the ability of the political branches towork out their differences minimizes the need for judicial intervention here.