Zivotofsky v. Clinton
566 U.S. ___ (2012)

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Justia Opinion Summary
Petitioner was born in Jerusalem and his mother requested that his place of birth be listed as "Israel" on a consular report of birth abroad and on his passport pursuant to section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, 116 Stat. 1350. U.S. officials refused the request and petitioner's parents filed suit on his behalf against the Secretary of State. The district court dismissed, holding that the case presented a nonjusticiable political question and the D.C. Circuit affirmed, reasoning that the Constitution gave the Executive the exclusive power to recognize foreign sovereigns and that the exercise of that power could not be reviewed by the courts. The Court held that the courts were fully capable of determining whether this statute could be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution. The only real question for the courts was whether the statute was constitutional. Having determined that the case was justiciable, the Court left it to the lower courts to consider the merits in the first instance. Accordingly, the Court vacated the judgment of the D.C. Circuit and remanded for further proceedings.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Syllabus

ZIVOTOFSKY, by his parents and guardians, ZIVOTOFSKY et ux. v. CLINTON, SECRETARY OF STATE

certiorari to the united states court of appeals for the district of columbia circuit

No. 10–699. Argued November 7, 2011—Decided March 26, 2012

Petitioner Menachem Binyamin Zivotofsky was born in Jerusalem. His mother requested that Zivotofsky’s place of birth be listed as “Israel” on a consular report of birth abroad and on his passport, pursuant to §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003. That provision states: “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 request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” U. S. officials refused the request, citing a State Department policy that prohibits recording “Israel” as the place of birth for those born in Jerusalem. Zivotofsky’s parents filed a suit on his behalf against the Secretary of State. The District Court dismissed the case, holding that it presented a nonjusticiable political question regarding Jerusalem’s political status. The D. C. Circuit affirmed, reasoning that the Constitution gives the Executive the exclusive power to recognize foreign sovereigns, and that the exercise of that power cannot be reviewed by the courts.

Held: The political question doctrine does not bar judicial review of Zivotofsky’s claim.  Pp. 5−12.

     (a) This Court has said that a controversy “involves a political question . . . where there is ‘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.’ ” Nixon v. United States, 506 U. S. 224 . The lower courts ruled that this case presents such a political question because they misunderstood the issue, assuming resolution of Zivotofsky’s claim would require the Judiciary to define U. S. policy regarding the status of Jerusalem. In fact, this case asks the courts to determine only whether Zivotofsky can vindicate his statutory right under §214(d) to choose to have Israel recorded as his place of birth on his passport. Making such determinations is a familiar judicial exercise. Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. There is no “textually demonstrable constitutional commitment” of that question to another branch: At least since Marbury v. Madison, 1 Cranch 137, this Court has recognized that it is “emphatically the province and duty” of the Judiciary to determine the constitutionality of a statute. Nor is there “a lack of judicially discoverable and manageable standards for resolving” the question: Both parties offer detailed legal arguments concerning whether the textual, structural, and historical evidence supports a determination that §214(d) is constitutional. Pp. 5–12.

     (b) Because the lower courts erroneously concluded that the case presents a political question, they did not reach the merits of Zivotofsky’s claim. This Court is “a court of final review and not first view,” Adarand Constructors, Inc. v. Mineta, 534 U. S. 103 , and ordinarily “do[es] not decide in the first instance issues not decided below,” National Collegiate Athletic Assn. v. Smith, 525 U. S. 459 . The merits of this case are therefore left to the lower courts to consider in the first instance. P. 12.

571 F. 3d 1227, vacated and remanded.

     Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg, and Kagan, JJ., joined. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined as to Part I. Alito, J., filed an opinion concurring in the judgment. Breyer, J., filed a dissenting opinion.

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