Zivotofsky v. Secretary of State

concurring:

In 2002, Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003, Pub.L. No. 107-228, 116 Stat. 1350 (2002) (“Foreign Relations Authorizations Act” or “Act”). The Act was signed into law on September 20, 2002 by President George W. Bush. Section 214 of the Act, entitled “United States Policy with Respect to Jerusalem as the Capital of Israel,” includes the following provision which is at issue in this case:

(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES — For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the re*1214quest of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

Id. § 214(d).

When the Foreign Relations Authorizations Act was signed into law, the President attached a “signing statement,” objecting to portions of § 214. The statement asserted that “Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to ... determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.” President George W. Bush, Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, 2 Pub. Papers 1698 (Sept. 30, 2002).

Menachem Binyamin Zivotofsky was bom in 2002 in Jerusalem. Because his parents are United States citizens, Zivotofsky is also a United States citizen. See 8 U.S.C. § 1401(c) (2006). After Zivotofsky’s birth, his mother filed an application on his behalf for a consular report of birth abroad and a United States passport. She requested of United States officials that these documents indicate her son’s place of birth as “Jerusalem, Israel.” United States diplomatic officials informed Mrs. Zivotofsky that passports issued to United States citizens born in Jerusalem could not record “Israel” as the place of birth. When the Zivotofskys received Menachem’s passport and consular report, both documents recorded his place of birth as “Jerusalem.” On his behalf, Zivotofsky’s parents filed this action under § 214(d) against the Secretary of State seeking to compel the State Department to identify Menachem’s place of birth as “Israel.”

In defending against Zivotofsky’s action in this case, the Secretary has pressed two principal arguments:

Zivotofsky has no judicially enforceable right because his complaint presents a political question. The power to recognize foreign sovereigns — including the power to recognize claims over disputed foreign territory — is textually committed by the Constitution to the President, and is therefore not subject to judicial override.

Section 214(d) is unconstitutional. Article II assigns to the President the exclusive power to recognize foreign sovereigns, and Congress has no authority to override or intrude on that power.

Appellee’s Br. at 18, 21. The Secretary’s first argument — that Zivotofsky’s claim is a nonjusticiable political question — is specious. The Secretary’s second argument, contesting the constitutionality of § 214(d), stands on solid footing.

I. The Political Question Doctrine has No Application in this Case

A. The Issue Before the Court

The Secretary does not doubt that Zivotofsky has standing to raise a viable cause of action under § 214(d) of the Foreign Relations Authorizations Act. Nor does the Secretary doubt that Zivotofsky properly invoked the District Court’s statutory jurisdiction under 28 U.S.C. §§ 1331, 1346(a)(2), and 1361. Therefore, the issue before this court is:

Whether § 214(d) of the Foreign Relations Authorizations Act, which affords Zivotofsky a statutory right to have “Israel” listed as the place of birth on his passport, is a constitutionally valid enactment.

Put another way, the court must decide:

Whether, in enacting § 214(d), a provision purporting to address “United States Policy with Respect to Jerusalem as the Capital of Israel,” Congress impermissibly intruded on the President’s exclusive power to recognize foreign sovereigns.

*1215These questions involve commonplace issues of statutory and constitutional interpretation, and they are plainly matters for the court to decide. And in answering these questions, this court has no occasion to address a “political question” that is reserved to the exclusive authority of one of the political branches of government.

B. First Principles Governing the Jurisdiction of Federal Courts

In considering whether a matter should be dismissed as a nonjusticiable political question, it is important to recall the first principles that govern the jurisdiction of federal courts:

• “It is, emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).

• “[Fjederal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 358, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989); see also Boumediene v. Bush, — U.S. -, 128 S.Ct. 2229, 2262, 171 L.Ed.2d 41 (2008).

• “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821).

In sum, “[w]hen a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction.... The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.” Willcox v. Consol. Gas Co. of New York, 212 U.S. 19, 40, 29 S.Ct. 192, 53 L.Ed. 382 (1909).

C. Nonjusticiable “Political Questions”

The political question doctrine embraces a limited exception to the rule that “federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred.” New Orleans Pub. Serv., 491 U.S. at 358, 109 S.Ct. 2506. As the Supreme Court explained in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), “[wjhere the Constitution assigns a particular function wholly and indivisibly to another department, the federal judiciary does not intervene.” Id. at 246, 82 S.Ct. 691 (Douglas, J., concurring). The converse of this proposition is that a federal court must not abstain from the exercise of jurisdiction that has been conferred, unless it has been asked to conclusively resolve a question that is “wholly and indivisibly” committed by the Constitution to a political branch of government. “Underlying these assertions is the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds.” New Orleans Pub. Serv., 491 U.S. at 359, 109 S.Ct. 2506.

The Supreme Court has described the political question doctrine as follows:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of gov-*1216eminent; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker, 369 U.S. at 217, 82 S.Ct. 691; see also INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); United States v. Munoz-Flores, 495 U.S. 385, 389-90, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990). As explained below, this case in no way fits within the frame of the Baker v. Carr “political question” paradigm.

D. The Crucial Distinction Between Jurisdiction and Nonjusticiability

In explaining the political question doctrine, the Court in Baker v. Carr was careful to amplify a crucial distinction between “cases withholding federal judicial relief [1] rest[ing] upon a lack of federal jurisdiction [and][2] upon the inappropriateness of the subject matter for judicial consideration — what [the Court has] designated ‘nonjusticiability.’ ” 369 U.S. at 198, 82 S.Ct. 691.

The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not “arise under” the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. Ill, § 2), or is not a “case or controversy” within the meaning of that section; or the cause is not one described by any jurisdictional statute.

Id.

When a federal court dismisses a case because it presents a “political question,” it does so not because the court lacks subject matter jurisdiction but, rather, because the “duty asserted can[not] be judicially identified and its breach judicially determined.” Id. “[T]he mere fact that [a] suit seeks protection of a political right does not mean it presents a political question.” Id. at 209, 82 S.Ct. 691. And “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id. at 211, 82 S.Ct. 691; see also Simon v. Republic of Iraq, 529 F.3d 1187, 1197 (D.C.Cir.2008) (the political question doctrine cannot be invoked to dismiss an action merely because it “may affect the foreign relations of the United States”). As noted scholars have pointed out, “[interpretation of statutes affecting foreign affairs is not likely to be barred by [the] political-question doctrine.” 13C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3534.2 (3d ed.2008), cases cited in n. 35.

The political question doctrine is purposely very narrow in scope, lest the courts use it as a vehicle “to decline the exercise of jurisdiction which is given.” Cohens, 19 U.S. (6 Wheat.) at 404. As the Court noted in Baker,

[t]he doctrine of which we treat is one of “political questions,” not one of “political cases.” The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “ ‘political’ ” exceeds constitutional authority.

369 U.S. at 217, 82 S.Ct. 691. Unsurprisingly, federal cases in which subject matter jurisdiction and standing are properly asserted are rarely dismissed as nonjusticiable pursuant to the political question *1217doctrine. Indeed, since Baker, the Supreme Court has only dismissed two cases as presenting nonjusticiable political questions. See Gilligan v. Morgan, 413 U.S. 1, 5, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) (declining “broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard” on the basis of an explicit constitutional textual commitment of that power to Congress and President); Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (finding request to review Senate impeachment proceedings nonjusticiable in light of explicit textual constitutional commitment of impeachment power to Senate).

The Supreme Court often hears and decides cases bearing major foreign policy implications. See, e.g., Boumediene, 128 S.Ct. 2229 (declining to dismiss the case under the political question doctrine and ruling that aliens detained as enemy combatants at United States Naval Station at Guantanamo Bay, Cuba, were entitled to the privilege of habeas corpus to challenge the legality of their detention, even though the United States did not claim sovereignty over place of detention). These cases are not dismissed pursuant to the political question doctrine. The reason is simple: Although the establishment of policies governing foreign relations is the business of the political branches, the determination of the meaning and legality of a congressionally enacted statute is the business of the courts.

E. The Legal Principles Controlling This Case

The principles enunciated by Baker and its progeny are really quite simple to comprehend and apply in this case. The controlling principles governing this case are these:

• The federal courts decide matters of statutory construction and constitutional interpretation. Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (“[Ujnder the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.”); Char dha, 462 U.S. at 943, 103 S.Ct. 2764 (“Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by courts because the issues have political implications .... ”); see also Goldwater v. Carter, 444 U.S. 996, 1002, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (Powell, J., concurring in the judgment) (“[The Supreme Court has] the responsibility to decide whether both the Executive and Legislative branches have constitutional roles to play in termination of a treaty. If the Congress, by appropriate formal action, had challenged the President’s authority to terminate the treaty ... it would be the duty of this Court to resolve the issue.”).

• When the federal courts review the constitutionality of a challenged statute, they do not infringe the authority of the legislative branch. In Munoz-Flores, 495 U.S. at 390, 110 S.Ct. 1964, the Supreme Court tellingly stated:

The Government may be right that a judicial finding that Congress has passed an unconstitutional law might in some sense be said to entail a “lack of respect” for Congress’ judgment. But disrespect, in the sense the Government uses the term, cannot be sufficient to create a political question. If it were, every judicial resolution of a constitutional challenge to a congressional enactment would be impermissible.

• The federal courts may not decide an issue whose resolution is com*1218mitted by the Constitution to the exclusive authority of a political branch of government. See Baker, 369 U.S. at 217, 82 S.Ct. 691; Gilligan, 413 U.S. at 6-7, 93 S.Ct. 2440; Nixon, 506 U.S. at 229-36, 113 S.Ct. 732. This does not mean that a court may not decide a case that merely implicates a matter within the authority of a political branch. Congress, alone, has the authority to pass legislation, but it does not follow from this that the courts are without authority to assess the constitutionality of a statute that has been properly challenged. Rather, the political question doctrine bars judicial review only when the precise matter to be decided has been constitutionally committed to the exclusive authority of a political branch of government. Compare Nixon, 506 U.S. at 229-36, 113 S.Ct. 732, with Powell v. McCormack, 395 U.S. 486, 519-22, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969).

• The courts may, however, decide whether and to what extent a matter is reserved to the exclusive authority of a political branch. Baker, 369 U.S. at 211, 82 S.Ct. 691 (“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”); Powell, 395 U.S. at 521, 89 S.Ct. 1944 (“[Wjhether there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department’ of government and what is the scope of such commitment are questions we must resolve.”); Nixon, 506 U.S. at 238,113 S.Ct. 732 (“[Cjourts possess power to review either legislative or executive action that transgresses identifiable textual limits”).

• The courts routinely adjudicate separation-of-powers claims. As the Court noted in Munoz-Flores, 495 U.S. at 393,110 S.Ct. 1964:

In many cases involving claimed separation-of-powers violations, the branch whose power has allegedly been appropriated has both the incentive to protect its prerogatives and institutional mechanisms to help it do so. Nevertheless, the Court adjudicates those separation-of-powers claims, often without suggesting that they might raise political questions. See, e.g., Mistretta v. United States, 488 U.S. 361, 371-379, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (holding that Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., and 28 U.S.C. § 991 et seq., did not result in Executive’s wielding legislative powers, despite either House’s power to block Act’s passage); Morrison v. Olson, 487 U.S. 654, 685-696, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (holding that independent counsel provision of Ethics in Government Act of 1978, 28 U.S.C. § 591 et seq., is not a congressional or judicial usurpation of executive functions, despite President’s veto power); INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (explicitly finding that separation-of-powers challenge to legislative veto presented no political question). In short, the fact that one institution of Government has mechanisms available to guard against incursions into its power by other governmental institutions does not require that the Judiciary remove itself from the controversy by labeling the issue a political question.

• If a federal court finds that a political branch has overreached in its

*1219claim of constitutionally committed authority, the court will decide the matter that is properly before it for resolution on the merits. Baker, 369 U.S. at 211, 82 S.Ct. 691 (“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution”); accord Powell, 395 U.S. at 521, 89 S.Ct. 1944.

• If a federal court determines that a political branch has acted within the compass of exclusive authority granted to it by the Constitution, the court may determine whether the other branch has acted to infringe that authority. The court does not review the substantive decision reached by the branch with exclusive authority; it merely determines whether the exercise of that authority has been infringed by the other branch. Baker, 369 U.S. at 212, 82 S.Ct. 691 (“[0]nee sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area.”); Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380-81, 69 S.Ct. 140, 93 L.Ed. 76 (1948) (holding question whether Fair Labor Standards Act covered employees allegedly engaged in the production of goods for commerce on a leasehold of the United States was not a political question; in reaching this conclusion, the Court made clear it was not second-guessing the Executive’s determination regarding the sovereignty of Great Britain over the foreign territory).

F. The Zivotofsky Claim is Plainly Justiciable

In light of the legal principles that control this case, the Secretary’s attempt to invoke the political question doctrine is meritless. The following example amplifies the point:

Assume that a lawfully enacted congressional statute provides that individuals over the age of 18 have a right to secure a passport on their own. Assume further that the statute gives individuals an enforceable right of action. If the Secretary of State adopts a policy pursuant to which 18-year-olds are denied passports without parental consent, claiming an exercise of the Executive’s recognition power, an aggrieved party would have a right of action to challenge the Secretary. A federal court hearing the case would be without authority to dismiss the action as a nonjusticiable political question. Why? Because the plaintiff has standing to pursue her claim and the court has jurisdiction to hear it. And the court would be well able to evaluate the competing claims of power and easily determine that the Executive overreached in its claim to exclusive authority under the recognition power. The court would find no valid exercise of textually committed power by the executive branch. See Powell, 395 U.S. 486, 89 S.Ct. 1944.

The flip side of this example is seen in a case like Nixon, 506 U.S. 224, 113 S.Ct. 732. In Nixon, the petitioner asked the Court to decide whether Senate Rule XI, which allowed “a committee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate,” violated the Constitution’s Impeachment Trial Clause, Art. I, § 3, cl. 6. 506 U.S. at 226, 113 S.Ct. 732. The Trial Clause provides that the “Senate shall have the sole Power to try all *1220Impeachments.” Id. (emphasis added). The Court first found that this provision reflects a clear “grant of authority to the Senate, and the word ‘sole’ indicates that this authority is reposed in the Senate and nowhere else.” Id. at 229, 113 S.Ct. 732. Having found a textually demonstrable constitutional commitment of the impeachment issue to a coordinate political department, the Court held that the action involved a nonjusticiable political question. Zivotofsky’s claim, which is founded on a cause of action under § 214(d), is nothing like Nixon’s claim.

In this case, there are two questions that are properly before the court: (1) whether the Executive’s passport policy reflects an action taken within the President’s exclusive power to recognize foreign sovereigns; and (2) if so, whether Congress’ enactment of § 214(d) impermissibly intruded on the President’s exclusive power to recognize foreign sovereigns. These questions raise issues that are constitutionally committed to the judicial branch to decide. Zivotofsky’s claim resting on § 214(d) does not require this court to evaluate the wisdom of the Executive’s foreign affairs decisions or to determine the political status of Jerusalem. The court’s role in this case is to determine the constitutionality of a congressional enactment. And this role is well within the constitutional authority of the judiciary. Japan Whaling Ass’n, 478 U.S. at 230, 106 S.Ct. 2860 (“[U]nder the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.”).

II. Section 214(D) Unconstitutionally Infringes the Executive’s Exclusive Authority Under the Recognition Power

Zivotofsky has asked the court to direct the State Department to designate “Israel” as his place of birth on his passport pursuant to Congress’ directive in § 214(d). The Executive asserts that § 214(d), if construed to be mandatory, represents an unconstitutional infringement of the President’s recognition power as it concerns Jerusalem.

A. The Recognition Power

The Executive has exclusive and unreviewable authority to recognize foreign sovereigns. This power derives from Article II, § 3 of the Constitution, which gives the President the sole power to “receive Ambassadors and other public Ministers” from foreign countries. U.S. Const. Art. II, § 3. The power to receive ambassadors includes the power to recognize governments with whom the United States will establish diplomatic relationships. This recognition power is vested solely in the President. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (“Political recognition is exclusively a function of the Executive.”); Baker, 369 U.S. at 212, 82 S.Ct. 691 (“[RJecognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called ‘a republic of whose existence we know nothing....’ ”).

It is also clear that, under the recognition power, the President has the sole authority to make determinations regarding the sovereignty of disputed territories. See Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839) (stating that when the executive branch “assumefs] a fact in regard to the sovereignty of any island or country ... it is conclusive on the judicial department”); Baker, 369 U.S. at 212, 82 S.Ct. 691 (“[T]he judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory....”). Finally, and importantly, the recognition power is “not limited to a determination of *1221the government to be recognized. It includes the power to determine the policy which is to govern the question of recognition.” United States v. Pink, 315 U.S. 203, 229, 62 S.Ct. 552, 86 L.Ed. 796 (1942).

B. The President’s Passport Policy Regarding the Designation of Jerusalem Is an Exercise of the Recognition Power

The Executive and Congress historically have shared authority over the regulation of passports. However, “[f]rom the outset, Congress [has] endorsed not only the underlying premise of Executive authority in the areas of foreign policy and national security, but also its specific application to the subject of passports. Early Congresses enacted statutes expressly recognizing the Executive authority with respect to passports.” Haig v. Agee, 453 U.S. 280, 294, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981); see also id. at 292-300, 101 S.Ct. 2766 (discussing history of congressional legislation and Executive control over passports); Kent v. Dulles, 357 U.S. 116, 122-24, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) (same). Congress passed the first Passport Act in 1856, endorsing the Executive’s power to cont