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Court takes on foreign policy dispute (UPDATED)

Final update 12:18 p.m.

Stepping into a significant test of the President’s foreign policy powers, the Supreme Court agreed on Monday to decide whether Congress had the authority to dictate how the Executive Branch makes out birth certificates for U.S. citizens born abroad — in this case, in Jerusalem, a city that the U.S. government does not recognize as an official part of Israel.  At issue is the validity of a nine-year-old law in which Congress aimed to acknowledge Jerusalem as the capital of Israel.  That dispute came in one of two cases the Court agreed on Monday to hear, at its next Term.  It also resolved an interstate dispute over water rights in the Yellowstone River basin, and summarily ruled on jury instructions in death penalty cases.

After State Department officials refused to fill out a report on the foreign birth of a boy born in 2002 in a Jerusalem hospital to show that his birthplace was “Israel,” his parents sued, seeking to enforce the 2002 law that ordered the State Department to do just that, when asked to do so.   A federal judge and the D.C. Circuit Court refused to decide the case, saying the controversy was a “political question” that the courts had no authority to resolve.  The boy, who will be nine years old in October, and his parents took the issue on to the Supreme Court.  (The family’s petition identifies the boy as Menachem Binyamin Zivotofsky, but the Court refers to him only by his initials.  The case is M.B.Z., et al., v. Clinton, Secretary of State, docket 10-699.)

Although the Justice Department had urged the Court not to hear the case, it granted review nevertheless.  In addition to agreeing to answer whether the dispute can be decided in the courts, or is a “political question” controversy, the Court told lawyers to argue an added question: whether the 2002 law unconstitutionally “infringes the President’s power to recognize foreign sovereigns.”  When President George W. Bush signed that bill into law in 2002, he made exactly that protest.   The case, thus, puts before the Court a case in which it may consider the effect that a presidential “signing statement” has on judicial interpretation of an act of Congress.   Mr. Bush, more than any other president, had used statements that he issued when he signed bills into law, to take exception to provisions that he and his aides thought intruded on White House powers.

The government has argued that the 2002 law will interfere with the Executive Branch’s attempts to negotiate for peace in the Middle East, because the status is a very hot topic in the area, leading the U.S. to refuse to recognize Jerusalem as formally a part of Israel.

The second case the Court granted Monday was CompuCredit Corp., et al., v. Greenwood, et al. (10-948), testing whether a 1996 federal law gives a consumer a right to sue a “credit repair organization” for misleading the customer about fees when given a credit card despite the individual’s low credit status.  The deal at issue in the case supposedly required consumers who sign up for such cards to take any dispute to arbitration, but the Ninth Circuit Court ruled that the 1996 law gives a consumer a specific right to sue over misleading information, and forbids the consumer to forfeit that right.   Taking the case to the Supreme Court, CompuCredit and Synovus Bank argued that the lower court ruling actually amounts to a flat bar to arbitration, in violation of the Federal Arbitration Act.

In Monday’s one ruling on an argued case, the Court by a vote of 7-1 barred the state of Montana from pursuing before the Justices a claim that the state of Wyoming, which lies upstream on the Yellowstone River and tributaries from Montana, is using up too much water in the basin for irrigation purposes so that less flows downstream to Montana farmers and cattlemen.  Because Wyoming uses more efficient methods of irrigation, more of the water drawn out of the river complex is soaked up in the soil, leaving less to flow back into the waterways and on downstream.  Justice Clarence Thomas wrote for the Court; Justice Antonin Scalia dissented.  Justice Elena Kagan took no part.  The case is Montana v. Wyoming, 137 Original.

In another ruling, decided without briefing and oral argument, the Court summarily overturned a Sixth Circuit Court decision that requires that, at a death sentencing hearing, the jury must be told that it has the option of imposing a life sentence instead of a death penalty.  That kind of instruction is required in the guilt phase of a capital case, under a 1980 Supreme Court decision, but the Court ruled Monday that it does not apply in the sentencing proceeding that follows the guilty verdict.  The unsigned ruling came in the case of Bobby v. Mitts (10-1000).

Among the cases the Court refused on Monday to review were constitutional challenges to state laws or judicial conduct rules that limit or forbid candidates for elected judgeships from raising campaign funds themselves, taking positions on issues that might come before them, or participating in party activity or leadership.  The denials came in Siefert v. Alexander (10-405), a Wisconsin case, and Bauer v. Shepard (10-425), an Indiana case.  As usual, the Court gave no explanation for the denials.

Also turned aside Monday was a case testing when an airline may be sued for alleged mistreatment of passengers during an international flight — a case that turned on the meaning of a treaty, the Tokyo Convention of 1963.  It was Alaska Airlines v. Eid, et al. (10-962).

For the third straight week, the Court took no action on the last of the eight Guantanamo Bay detainees cases pending on the docket this Term — Khadr, et al., v. Obama (10-751).  The petition involves one of the most significant issues to arise in the wake of the Court’s 2008 decision in Boumediene v. Bush, allowing the detainees to go to federal court to challenge their confinement.  The issue is whether a separate 2008 decision, Munaf v. Geren, has taken away virtually all of the authority of federal District judges to control transfers of Guantanamo detainees in order to protect the judge’s authority to hear a challenge.   The Court may consider the case again at its next Conference, on May 12.

Recommended Citation: Lyle Denniston, Court takes on foreign policy dispute (UPDATED), SCOTUSblog (May. 2, 2011, 10:09 AM),