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Opinion analysis: Enabling a constitutional fight


Finding that lower courts were too modest about judicial power, the Supreme Court on Monday assigned them the task of sorting out a potentially fundamental issue over how — or whether — the President or Congress controls a very sensitive foreign policy issue, in this case dealing with the tinderbox of Arab-Israeli conflict in the Middle East.   It is possible that the assignment might be quite narrow, and might not require judges to second-guess major foreign policy choices.   But it is also possible that the lower courts may have to say when, and how, Congress can dictate some foreign policy to the Executive Branch, a much bigger question.  It is not unlikely that the dispute would some day return to the Supreme Court.

Constitutional questions linger in the case of Zivotofsky v. Clinton (docket 10-699) simply because the Supreme Court chose not to decide them, even though it had taken on that task.  The Court, by a vote of 8-1, did decide one constitutional issue: it ruled that the remaining issues were clearly within the authority of the federal judiciary, using powers the courts have had since Marbury v. Madison was decided in 1803.

This case starts, and might end, with the question of how a passport gets made out to show the birthplace of an American boy, now nine years old, because he was born in a hospital in Israel.  His parents want to list his birthplace as Israel, and Congress has said they must get their wish.  The State Department insists that his passport must show he was born in Jerusalem, and that this is none of Congress’s business.

Depending upon who is analyzing the birthplace issue, it may — or it may not — implicate the international status of Jerusalem, and the U.S. government’s long-standing policy of remaining neutral on whether Jerusalem is the capital of Israel, or even whether it is formally a part of the nation of Israel.   The State Department insists that how the birthplace issue is resolved could tell the world, and especially the nations of the Middle East, that the U.S. has chosen up sides on the status of Jerusalem, seriously complicating diplomacy in that region.  And Congress insists that that is precisely what it wants: to establish that Jerusalem is in Israel and is, in fact, its capital city.

But that is the part of this controversy over the birth of Menachem Binyamin Zivotofsky that the Supreme Court said is not an issue in the case.  The boy and his parents, Chief Justice John G. Roberts, Jr., wrote in the lead opinion, do not ask the courts “to determine whether Jerusalem is the capital of Israel.”  What they do ask begins with the fact that Congress has passed a law that gave the boy’s parents the choice about his birthplace listing, and so they ask that the courts to rule that Congress had the power to do that.  The State Department insists that this is a foreign policy issue committed entirely to the Executive Branch.

The Roberts opinion carefully listed each side’s arguments, but then chose not to decide them.   The lower courts had thrown out the parents’ lawsuit seeking the Israel birthplace designation, on the theory that this involved a “political question” that was beyond the power of the courts to decide.  Overturning that result, the Supreme Court declared that the case does not involve a “political question,” but rather a constitutional question of whether Congress had the power to pass the law in 2002.

When the case returns to lower courts, they may have to decide — at a minimum — whether the issuance of passports and what is on those forms is a shared duty of the Executive and Congress, or a duty held exclusively by the Executive.  But in order to answer that question, the courts seem obliged to decide whether issuing passports is actually a part of the Executive’s duty under the Constitution to decide which foreign countries are to be given official recognition by the U.S. government, or whether issuing passports is actually a part of immigration law that Congress can control or at least influence.

Answers may draw the lower courts deeply into how diplomatic and foreign policy is made, and how the Constitution divides up that authority — if, in fact, it is something that is divided.

When President George W. Bush signed into law the 2002 Israel birthplace law, he issued a statement saying that, if that law were understood to be a mandatory command to the State Department, it would amount to an unconstitutional intrusion into the President’s core foreign policy powers, including decisions on whether to recognize a foreign state.   That may be the ultimate question now for the lower courts to resolve in the first instance.

The Chief Justice’s opinion said the task given to the lower courts will not be a simple one, even though he said “it is a familiar judicial exercise.”  Noting that the Zivotofsky family is relying upon a specific right granted in a law passed by Congress, the opinion said the existence of that right bears upon the judiciary’s power to decide whether that statute is valid.  While that does not require the courts “to supplant a foreign policy decision of the political branches,” the Chief Justice wrote, it does require judges to decide “whether the statute is constitutional.”

To address that question, Roberts added, “involves deciding whether the statute impermissibly intrudes upon presidential powers under the Constitution.”  If it does, the law must be struck down and the Zivotofsky case must be dismissed, but if it does not, then the State Department may be ordered by the court to issue the passport in the form the family wants, according to the opinion.  Either way, the Court said, does not involve a “political question.”

When the Zivotofskys appealed their case to the Supreme Court last year, they asked it only to decide whether the dispute did involve a “political question.”  But, when the Court granted review last May, it escalated the potential importance of the case by adding the question of whether the 2002 law unconstitutionally infringed on the President’s powers.  The case was heard in early November, but not decided until Monday.  In the end, the Court did not answer the question it had added to the case, leaving that to the lower courts first.

Posted at 6:00 p.m.

Recommended Citation: Lyle Denniston, Opinion analysis: Enabling a constitutional fight, SCOTUSblog (Mar. 26, 2012, 6:00 PM),