A Political Question, or a Judicial One–and Then What?

Legal scholars–not to mention judges–live or die professionally with the myth that constitutional questions are so frequently hard ones.  In truth, while the law has many procedural intricacies grounded in statutes, rules, and precedents, most questions of constitutional interpretation aren’t all that hard.  The case of Zivotofsky v. Secretary of State seems to be one of the rare hard ones. 

Since its recognition of the state of Israel in 1948, the United States has officially treated the status of Jerusalem as unresolved–not only the question whether Jerusalem is to be considered Israel’s capital, but whether it is part of Israel’s sovereign territory in the first place.  This underlies the refusal of president after president to move the U.S. embassy from Tel Aviv to Jerusalem. 

It is also the longstanding practice of the State Department that when a U.S. citizen is born in Jerusalem (i.e., a child of sojourning American parents), the department will issue, on request, a “consular report of birth” as well as a passport, giving the place of birth simply as “Jerusalem,” with no country specified.

Enter the Congress.  In its 2002 authorization act for State, Congress directed that the Secretary of State “shall,” in such documents, for citizens born in Jerusalem, “record the place of birth as Israel.”  Now comes Menachem Binyamin Zivotofsky, born in October 2002 in Jerusalem.  His parents have been requesting, and subsequently litigating for, such documents for young Menachem since he was an infant. 

President George W. Bush, in a signing statement regarding the 2002 statute, declared the executive branch would not consider itself bound by this provision of it, arguing that it “impermissibly interferes” with the president’s control of foreign relations.  But whence comes this control?  In this context, it rests entirely on some innocuous words in Article II, that the president “shall receive Ambassadors and other public Ministers.”  In due course–and fairly rapidly–this clause took on rather large meaning, that presidents and only presidents, without any role for the Congress, could give or withhold recognition of another nation’s sovereignty, by the simple act of receiving or not receiving its ambassador, establishing or declining to establish diplomatic relations.  In international law and foreign relations, this is a very big deal, and it often impinges on domestic legal questions as well.

The Obama administration is following the Bush lead here, and so far it’s winning.  In 2009 a three-judge panel of the D.C. Circuit ruled that the question raised in the case is a “political” one, not to be decided by the judges at all–which meant no decision on the merits but a de facto victory for State’s refusal of the Zivotofsky family’s demand, and de facto nullification of the statutory requirement.  One judge, Harry Edwards, wrote that the issue was not political, and so could be decided on the merits–but that he would decide in the executive branch’s favor.  In 2010, the full D.C. Circuit denied en banc rehearing.  Now the Supreme Court has accepted the case for review in its next October term.

The notion of “political questions” is a venerable one, traceable all the way back to Marbury v. Madison (1803) itself, the very case that first enunciated the federal judiciary’s power to treat some statutes as unconstitutional.  Is this a case in such a category?  One would be hard pressed to see how courts could adjudicate, for instance, the executive’s choice to recognize a certain country and not another, or one putative government of a country and not a rival faction claiming to be the government, in his reception of some ambassadors and not others.

But since 1948, the U.S. has consistently recognized Israel.  Is Congress foreclosed from all participation in regulating the U.S.-Israel relationship (other than appropriations)?  Is it barred from legislating on the rights of American citizens born overseas, such that it cannot impose the ministerial duty on executive branch functionaries that they identify the state of Israel as the birthplace of Americans born in Jerusalem?  Or is a large encroachment on a core executive power lurking in this merely ministerial duty?

John Marshall said in Marbury that “questions, in their nature political” are none of the judiciary’s business, and the paradigmatic case involved those questions that “respect the nation, not individual rights,” and thus were questions on which the executive’s discretion was “conclusive.”  But he also said that “the question whether a right has vested or not is, in its nature, judicial, and must be tried by the judicial authority.”  Which sort of situation is the Zivotofsky case?

I incline toward the view that a legal right is involved here and so the Court should not dodge it with talk of its “political” character.  And if the merits are reached, I don’t see how Judge Edwards’ pro-executive view can prevail here.  That is, it’s either a political question or the Zivotofskys win on the merits, and I think the second outcome makes more sense.  On balance, I’m with Seth Lipsky, who wrote about this case the other day in the Wall Street Journal.

But it’s a tougher case than most.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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