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Aaron Tang .

Posted Tue, October 25th, 2011 9:00 am

M.B.Z. v. Clinton

On November 7, in M.B.Z. v. Clinton, the Court will consider the intersection of the political question doctrine and separation of powers in a contentious area of foreign policy.  At issue in the case is a 2002 law that requires State Department officials, when asked to do so, to designate “Israel” as the “place of birth” on the passport of a U.S. citizen born in Jerusalem.  Until that time, State Department regulations had attempted to avoid the thorny classification dilemma by simply designating “Jerusalem” – rather than “Israel” or “Palestine” – as the place of birth on passports for any U.S. citizens born in that city.

The petitioner in the case, M.B.Z., was born in Jerusalem to U.S.-citizen parents in 2002.  Although his parents asked the State Department to designate Israel as their son’s place of birth on his passport, it declined to do so despite Congress’s command to the contrary. When the parents took the issue to the courts, the U.S. Court of Appeals for the D.C. Circuit dismissed their claim on the ground that it raised a nonjusticiable political question:  the court of appeals explained that the “judiciary has no authority to order the Executive Branch to change the nation’s foreign policy” with respect to whether Jerusalem is part of Israel.

The parents then asked the Supreme Court to take up the case, which it did last spring.  In so doing, the Court added a second question for review: whether Congress’s enactment of the law itself impermissibly infringes upon the executive branch’s power to recognize foreign sovereigns.  That the Court chose to do so may reveal the underlying views of some of the Justices on the matter: for the same reason that the D.C. Circuit believed that it was the prerogative of the executive branch to decide foreign policy free from judicial oversight, perhaps the same separation of powers principles doom the legislature’s initial imposition on executive authority.  Today’s community discussion focuses on the merits of these two questions, and any other aspect of the case that you feel may be worthwhile.

  • Aaron Tang – 0 Promoted Comments

    In this thread, discuss whether M.B.Z.’s request that the courts order the State Department to place “Israel” as his place of birth is a nonjusticiable political question.

    • Cheryl Hanna – 1 Promoted Comment

      An underlying question before the U.S. Supreme Court in M.B.Z. v. Clinton is the potential impact on foreign policy that may result from parents recording the place of birth as Israel in passports of American children born in Jerusalem. If you believe Congress and the lawyers for the boy whose parents want his passport to note his place of birth as Israel, the answer is none. If you believe the Secretary of State, the answer is that it “would critically compromise the United States’ ability to help further the Middle East peace process” and make it difficult to work with other nations in the region.
      Those two very different views of foreign policy are what make this case particularly dangerous for the Court. The Court first has to decide if the political question doctrine even allows it to reach the merits of the case, and, if it does reach the merits, whether the 2002 law impermissibly infringes upon the power of the president to recognize foreign sovereigns. At the heart of the political question issue is whether the Constitution assigns to the president the exclusive decision to decide how to recognize Jerusalem on passports, thereby invoking Baker v. Carr’s limitation that the Court may not review discretionary actions that are textually committed to a political branch. This contention is one with which M.B.Z. disagrees, arguing that the power to recognize foreign sovereigns was a ceremonial duty, “assigned to the President as a practical measure.” Of course, the political question doctrine is intricately related to the second question of whether the Court should defer to the President or Congress on the matter.
      The petitioner relies heavily on the “Taiwan Precedent” to rebut claims that the law would impact foreign policy. In 1994, President Clinton directed the Secretary of State to permit U.S. citizens born in Taiwan to list Taiwan as their birthplace instead of China. The change did not harm foreign relations as the State Department had warned it would. The petitioner argues that the Taiwan precedent should suggest to the Court that the Secretary of State’s concerns in M.B.Z. are similarly overblown.

      But the Twain policy was implemented by a president without a Supreme Court battle. That’s why the Court has to be very careful not to second-guess the determination by the executive branch about the potential political consequences of a change in U.S. policy. In a world where a few posts on Facebook can spark a revolution, it strikes me as naïve to suggest that a ruling from the nation’s highest court ordering the State Department to put Israel as designated the place of birth at the request of Jerusalem-born Americans would go unnoticed by the rest of the world. The risks of such a change are heightened when it could be perceived the Court itself can override the judgment of the president in matters of foreign policy, even if that is not what the Court is technically doing. That’s not to say that the Court has to give complete deference to the President in all such matters, but at least regarding questions of the recognition of sovereign nations in the midst of political uncertainty, the Court should tread carefully.

    • Vikram Amar – 1 Promoted Comment

      It’s hard for me to imagine that the Court is anxious to take up the merits of this battle between Congress and the President over the dicey question of whether Jerusalem should be considered by the United States to be part of Israel. I speculate, then, that the Court granted cert. in the case to provide guidance on muddled doctrine surrounding so-called “political questions.”

      To be sure, the political question category relied on by the D.C. Circuit — that the legal question being fought over is “textually committed” to a non-judicial branch — doesn’t seem like a great fit with this case. It can’t be that the President’s mere invocation of his recognition power forecloses a federal court from even looking at whether his power to undertake foreign policy is in fact likely to be impaired if a plaintiff’s challenge were accepted. In general, I think the textually-committed-to-another-branch prong of political question doctrine is often invoked carelessly. What is needed is a textual distinction that explains why some actions by Congress or the President, say, impeachment trials, are immune from judicial second-guessing, whereas others, like legislation, are not. Where the Constitution textually authorizes another branch to act as a court — as it does when the Senate holds impeachment trials or when each house judges the age, citizenship and election returns of its members — courts are arguably textually cut out of the loop. But that isn’t the case in MBZ. Of course, there may be other political question categories that might apply, and keeping each of the categories reasonably clear and coherent (if not always free from overlap) would be a worthy goal.

  • Aaron Tang – 0 Promoted Comments

    In this thread, discuss whether Congress’s enactment of a law directing State Department officials to characterize the place of birth of persons born in Jerusalem in a particular way unconstitutionally encroaches upon the President’s Article II powers with respect to foreign policy.

    • Robert Reinstein – 1 Promoted Comment

      M.B.Z. v. Clinton is the first case in which there is an apparent conflict between an act of Congress and the President’s authority to recognize a foreign state or government. Assuming that the Supreme Court continues to apply the framework established in Justice Jackson’s concurring opinion in Youngstown, this is a case where the President’s power is at its “lowest ebb,” which means that the President can prevail only if the Executive recognition power is exclusive. The Solicitor General argues that the provision in Art. II, § 3, that the President “shall receive Ambassadors and other Public Ministers” creates such a plenary power. He relies on statements in a number of Supreme Court opinions and scholarly treatises, and on an allegedly unbroken practice that dates back to the Washington administration.

      But the relevant sources are not as one-sided as most commentators believe. The framers almost certainly considered the Receive Ambassador Clause as merely imposing a ministerial duty on the President as head of state. There are statements in other Supreme Court opinions (including by Marshall speaking for the Court in 1818) that the recognition power belongs jointly to Congress and the President. And, at least through the Lincoln administration, no President claimed that he possessed such an exclusive power. In notable cases of recognition, Presidents Washington, Monroe, Jackson, Taylor and Lincoln either relied on duties of international law, acted jointly with Congress or deferred altogether to Congress. My own view is that history and the President’s role in conducting foreign policy gives him the implied power to recognize foreign states and government, but that power is not plenary. Much as in the case of executive agreements, the President can take the initiative; but Congress can modify or override his decision by statute.

      The public should understand that this case has implications well beyond the content of passports. This case is at the tip of the iceberg of Middle East policy and politics. Can the President unilaterally recognize a Palestinian state with defined boundaries? Can Congress modify or override such recognition? The answers to these questions (mine are “yes” to each) may be determined by the decision in this case.

    • Michael Schwartz – 1 Promoted Comment

      The Government’s position that the Executive Branch has exclusive Constitutional power to define the contents of a passport is, simply, frivolous. In the first place, passports are creatures of statute, and there is no legal authority suggesting that Congress cannot define their contents. Moreover, the Government’s claim that, because the identification of a citizen’s birthplace may offend Israel’s enemies, the Constitution forbids Congress from adopting it, privileges non-U.S. citizens over Americans. Indeed, with respect to the issues that divide Israel and its enemies, Congress has frequently legislated in this area, and on the broader issues of Islamist terrorism and religious discrimination — no doubt offending far more powerfully that same foreign audience than a line in a passport could –without Constitutional objection from any prior Administration. Further, Congress has legislated, without Executive Branch objection, with respect to the terms on which foreign governments are recognized, notably in the instance of the United States’ recognition of Communist China. This last point is endorsed in a State Department paper published on the Department’s web-site, see “Foreign Policy Roles of the President and C ongress,” http://fpc.state.gov/6172.htm, at p. 6.

      It is also noteworthy that, on the facts of this case, the petitioner was clearly born in Israel. He was born in a hospital located far to the west of the so-called “Green Line,” i.e., in an area that no-one except those who don’t recognize Israel at all claims is not part of Israel. And all his parents want the passport to say is that his birthplace is “Israel.” As the late Senator Daniel Moynihan pungently said, everyone’s entitled to their own opinion; they are not entitled to their own facts. This applies to the State Department as much as to anyone else.

      Poster is Of Counsel to the firm of Wachtell, Lipton, Rosen & Katz. This post reflects the poster’s views, and not the views of the firm.

  • Aaron Tang – 0 Promoted Comments

    In this thread, feel free to discuss other issues related to this case which you think are important for the legal community but that perhaps have yet to receive sufficient attention.

  • Calvin Massey – 1 Promoted Comment

    Is the issue in M.B.Z. a non-justiciable political question and, if not, does the law exceed congressional authority? Some years ago, Louis Henkin claimed that the political question doctrine was chimerical: If an issue is a political question the status quo is implicitly affirmed, and that result is indistinguishable from a ruling on the merits. Of course, by calling something a political question, and framing the issue narrowly, the judiciary leaves room for finding a different version of the issue to be justiciable, and thus permits a contrary ruling on the merits. Is it worth doing so in M.B.Z.?
    Settled law holds that objections to foreign policy and the terms of recognition of foreign governments are not justiciable and must be addressed to the political departments. United States v. Pink. Statements in a passport concerning the birthplace of the holder are official statements about the sovereign status of the birthplace. To declare Jerusalem to be Israel, Palestine, or Jordan, is to formulate an official view about which nation or entity has sovereignty over Jerusalem. To declare Jerusalem to be Jerusalem is to make an official statement of abstention from the controversy. Zivotofsky retorts that the political departments have addressed the issue – by enactment of the law at issue. This argument elides the fact that the Court must first interpret the scope of the recognition power to determine whether there has been a “textually demonstrable commitment” of resolution of the issue to one of the coordinate branches – President or Congress. But if the Court rules that there is such a commitment to the President it will have simultaneously ruled that the issue is not justiciable and that the President has the sole power to resolve the matter. Thus, it looks like there is not a Weimar mark’s worth of difference between resolution on the merits or resolution as a political question.
    But there is a reason to rule that the issue is a non-justiciable political question. Two different sections of the law at issue in M.B.Z. mandate that 1) no funds can be spent on any “diplomatic facility” in Jerusalem unless it is under the control of the American ambassador to Israel, and 2) that no funds may be spent on any government document that list countries and their capitals unless Jerusalem is listed as the capital of Israel. Were the Court to treat the passport provision as non-justiciable it leaves the other two potential clashes open for either avoidance on the political question ground or to rule on the merits. These hypothetical possibilities pose somewhat harder questions, for Congress surely has the appropriations power, and the President has a broad discretion to formulate foreign policy. The course of wisdom is to rule that M.B.Z. presents a non-justiciable political question.

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