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SUPREME COURT OF THE UNITED STATES
MENACHEM BINYAMIN ZIVOTOFSKY, by his parents
and guardians, ARI Z. and NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER
HILLARY RODHAM CLINTON, SECRETARY OF STATE
on writ of certiorari to the united states
court of appeals for the district of columbia circuit
[March 26, 2012]
Chief Justice Roberts delivered the opinion of
Congress enacted a statute providing that
Americans born in Jerusalem may elect to have “Israel”
listed as the place of birth on their passports. The State
Department declined to follow that law, citing its longstanding
policy of not taking a position on the political status of
Jerusalem. When sued by an American who invoked the statute, the
Secretary of State argued that the courts lacked authority to
decide the case because it presented a political question. The
Court of Appeals so held.
We disagree. The courts are fully capable of
determining whether this statute may be given effect, or instead
must be struck down in light of authority conferred on the
Executive by the Constitution.
In 2002, Congress enacted the Foreign
Relations Authorization Act, Fiscal Year 2003, 116Stat. 1350.
Section 214 of the Act is entitled “United States Policy with
Respect to Jerusalem as the Capital of Israel.” Id.,
at 1365. The first two subsections express Congress’s
“commitment” to relocating the United States Embassy in
Israel to Jerusalem. Id.,
at 1365–1366. The third bars
funding for the publication of official Government documents that
do not list Jerusalem as the capital of Israel. Id.,
1366. The fourth and final provision, §214(d), is the only one
at stake in this case. Entitled “Record of Place of Birth as
Israel for Passport Purposes,” it provides that “[f]or
purposes of the registration of birth, certification of national-
ity, or issuance of a passport of a United States citizen born in
the city of Jerusalem, the Secretary shall, upon the re- quest of
the citizen or the citizen’s legal guardian, record the place
of birth as Israel.” Ibid.
The State Department’s Foreign Affairs
Manual states that “[w]here the birthplace of the applicant
is located in territory disputed by another country, the city or
area of birth may be written in the passport.” 7 Foreign
Affairs Manual §1383.5–2, App. 108. The manual
specifically directs that passport officials should enter
“JERUSALEM” and should “not write Israel or
Jordan” when recording the birthplace of a person born in
Jerusalem on a passport. Id.
, §1383, Exh. 1383.1, App.
127; see also id.,
.5–5, .5–6, App. 106, 108–110.
Section 214(d) sought to override this
instruction by allowing citizens born in Jerusalem to have
“Israel” recorded on their passports if they wish. In
signing the Foreign Relations Authorization Act into law, President
George W. Bush stated his belief that §214
“impermissibly interferes with the President’s
constitutional authority to conduct the Nation’s foreign
affairs and to supervise the unitary executive branch.”
Statement on Signing the Foreign Relations Authorization Act,
Fiscal Year 2003, Public Papers of the Presidents, George W. Bush,
Vol. 2, Sept. 30, 2002, p. 1698 (2005). He added that if
the section is “construed as mandatory,” then it would
“interfere with the President’s constitutional
authority to formulate the position of the United States, speak for
the Nation in international affairs, and determine the terms on
which recognition is given to foreign states.” Ibid.
He concluded by emphasizing that “U. S. policy regarding
Jerusalem has not changed.” Ibid.
The President made
no specific reference to the passport mandate in §214(d).
Petitioner Menachem Binyamin Zivotofsky was
born in Jerusalem on October 17, 2002, shortly after §214(d)
was enacted. Zivotofsky’s parents were American citizens and
he accordingly was as well, by virtue of congressional enactment. 8
U. S. C. §1401(c); see Rogers
, 401 U.S.
, 835 (1971) (foreign-born children of American citizens
acquire citizenship at birth through “congres- sional
generosity”). Zivotofsky’s mother filed an application
for a consular report of birth abroad and a United States passport.
She requested that his place of birth be listed as
“Jerusalem, Israel” on both documents. U. S.
officials informed Zivotofsky’s mother that State Department
policy prohibits recording “Israel” as
Zivotofsky’s place of birth. Pursuant to that policy,
Zivotofsky was issued a passport and consular report of birth
abroad listing only “Jerusalem.” App. 19–20.
Zivotofsky’s parents filed a complaint on
his behalf against the Secretary of State. Zivotofsky sought a
declaratory judgment and a permanent injunction ordering the
Secretary to identify his place of birth as “Jerusalem,
Israel” in the official documents. Id.,
17–18. The District Court granted the Secretary’s
motion to dismiss the complaint on the grounds that Zivotofsky
lacked standing and that his complaint presented a nonjusticiable
The Court of Appeals for the D. C. Circuit
reversed, concluding that Zivotofsky did have standing. It then
observed that while Zivotofsky had originally asked that
“Jerusalem, Israel” be recorded on his passport,
“[b]oth sides agree that the question now is whether
§214(d) entitles [him] to have just ‘Israel’
listed as his place of birth.”
444 F.3d 614
, 619 (2006). The D. C. Circuit determined
that additional factual development might be helpful in deciding
whether this question was justiciable, as the parties disagreed
about the foreign policy implications of listing
“Israel” alone as a birthplace on the passport.
at 619–620. It therefore remanded the case to the
The District Court again found that the case was
not justiciable. It explained that “[r]esolving
[Zivotofsky’s] claim on the merits would necessarily require
the Court to decide the political status of Jerusalem.” 511
F. Supp. 2d 97, 103 (2007). Concluding that the claim therefore
presented a political question, the District Court dismissed the
case for lack of subject matter jurisdiction.
The D. C. Circuit affirmed. It reasoned
that the Constitution gives the Executive the exclusive power to
recognize foreign sovereigns, and that the exercise of this power
cannot be reviewed by the courts. Therefore, “deciding
whether the Secretary of State must mark a passport . . .
as Zivotofsky requests would necessarily draw [the court] into an
area of decisionmaking the Constitution leaves to the Executive
alone.” 571 F.3d 1227, 1232–1233 (2009). The D. C.
Circuit held that the political question doctrine prohibits such an
intrusion by the courts, and rejected any suggestion that
Congress’s decision to take “a position on the status
of Jerusalem” could change the analysis. Id.
Judge Edwards concurred in the judgment, but
wrote separately to express his view that the political question
doctrine has no application to this case. He explained that the
issue before the court was whether §214(d)
“impermissibly intrude[s] on the President’s exclusive
power to recognize foreign sovereigns.” Id.,
That question, he observed, involves “commonplace issues of
statutory and constitutional interpretation” plainly within
the constitutional authority of the Judiciary to decide.
at 1235. Reaching the merits, Judge Edwards determined
that designating Israel as a place of birth on a passport is a
policy “in furtherance of the recognition power.”
at 1243. Because in his view the Constitution gives
that power exclusively to the President, Judge Edwards found
§214(d) unconstitutional. For this reason, he concluded that
Zivotofsky had no viable cause of action, and concurred in
affirming the dismissal of the complaint.
Zivotofsky petitioned for certiorari, and we
granted review. 563 U. S. ___ (2011).
The lower courts concluded that
Zivotofsky’s claim presents a political question and
therefore cannot be ad- judicated. We disagree.
In general, the Judiciary has a responsibility
to decide cases properly before it, even those it “would
gladly avoid.” Cohens
, 6 Wheat.
264, 404 (1821). Our precedents have identified a narrow exception
to that rule, known as the “political question”
doctrine. See, e.g., Japan Whaling Assn.
, 478 U.S.
, 230 (1986). We have explained that a controversy
“involves a political question . . . where there is
‘a textu- ally 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
, 228 (1993) (quoting Baker
, 369 U.S.
, 217 (1962)). In such a case, we have held that a court
lacks the authority to decide the dispute before it.
The lower courts ruled that this case involves a
political question because deciding Zivotofsky’s claim would
force the Judicial Branch to interfere with the President’s
exercise of constitutional power committed to him alone. The
District Court understood Zivotofsky to ask the courts to
“decide the political status of Jerusalem.” 511
F. Supp. 2d, at 103. This misunderstands the issue presented.
Zivotofsky does not ask the courts to determine whether Jerusalem
is the capital of Israel. He instead seeks to determine whether he
may vindicate his statutory right, under §214(d), to choose to
have Israel recorded on his passport as his place of birth.
For its part, the D. C. Circuit treated the
two questions as one and the same. That court concluded that
“[o]nly the Executive—not Congress and not the
courts—has the power to define U. S. policy regarding
Israel’s sovereignty over Jerusalem,” and also to
“decide how best to implement that policy.” 571
F. 3d, at 1232. Because the Department’s passport rule
was adopted to implement the President’s “exclusive and
unreviewable constitutional power to keep the United States out of
the debate over the status of Jerusalem,” the validity of
that rule was itself a “nonjusticiable political
question” that “the Constitution leaves to the
Executive alone.” Id.,
at 1231–1233. Indeed, the
D. C. Circuit’s opinion does not even mention
§214(d) until the fifth of its six paragraphs of analysis, and
then only to dismiss it as irrelevant: “That Congress took a
position on the status of Jerusalem and gave Zivotofsky a statutory
cause of action . . . is of no moment to whether the
judiciary has [the] authority to resolve this dispute
. . . .” Id.
, at 1233.
The existence of a statutory right, however, is
certainly relevant to the Judiciary’s power to decide
Zivotofsky’s claim. The federal courts are not being asked to
supplant a foreign policy decision of the political branches with
the courts’ own unmoored determination of what United States
policy toward Jerusalem should be. Instead, Zivotofsky requests
that the courts enforce a specific statutory right. To resolve his
claim, the Judiciary must decide if Zivotofsky’s
interpretation of the statute is correct, and whether the statute
is constitutional. This 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. At least since
, 1 Cranch 137 (1803), we have
recognized that when an Act of Congress is alleged to conflict with
the Constitution, “[i]t is emphatically the province and duty
of the judicial department to say what the law is.”
at 177. That duty will sometimes involve the
“[r]esolution of litigation challenging the constitutional
authority of one of the three branches,” but courts cannot
avoid their responsibility merely “because the issues have
political implications.” INS
, 943 (1983).
In this case, determining the constitutionality
of §214(d) involves deciding whether the statute impermissibly
intrudes upon Presidential powers under the Constitution. If so,
the law must be invalidated and Zivotofsky’s case should be
dismissed for failure to state a claim. If, on the other hand, the
statute does not trench on the President’s powers, then the
Secretary must be ordered to issue Zivotofsky a passport that
complies with §214(d). Either way, the political question
doctrine is not implicated. “No policy underlying the
political question doctrine suggests that Congress or the Executive
. . . can decide the constitutionality of a statute; that
is a decision for the courts.” Id
The Secretary contends that “there is
‘a textually demonstrable constitutional
commitment’ ” to the President of the sole power
to recognize foreign sovereigns and, as a corollary, to determine
whether an American born in Jerusalem may choose to have Israel
listed as his place of birth on his passport. Nixon
U. S., at 228 (quoting Baker
, 369 U. S., at 217);
see Brief for Respondent 49–50. Perhaps. But there is, of
course, no exclusive commitment to the Executive of the power to
determine the constitutionality of a statute. The Judicial Branch
appropriately exercises that authority, including in a case such as
this, where the question is whether Congress or the Executive is
“aggrandizing its power at the expense of another
, 501 U.S.
, 878 (1991); see, e.g., Myers
, 272 U.S.
, 176 (1926) (finding a statute unconstitutional because it
encroached upon the President’s removal power);
, 478 U.S.
, 734 (1986) (finding a statute un- constitutional because
it “intruded into the executive function”);
, 487 U.S.
, 685 (1988) (upholding a statute’s constitutionality
against a charge that it “impermissibly interfere[d] with the
President’s exercise of his constitutionally appointed
Our precedents have also found the political
question doctrine implicated when there is “ ‘a
lack of judicially discoverable and manageable standards for
resolving’ ” the question before the court.
, at 228 (quoting Baker
, at 217). Framing the issue as the lower courts did,
in terms of whether the Judiciary may decide the political status
of Jerusalem, certainly raises those concerns. They dissipate,
however, when the issue is recognized to be the more focused one of
the constitutionality of §214(d). Indeed, both sides offer
detailed legal arguments regarding whether §214(d) is
constitutional in light of powers committed to the Executive, and
whether Congress’s own powers with respect to passports must
be weighed in analyzing this question.
For example, the Secretary reprises on the
merits her argument on the political question issue, claiming that
the Constitution gives the Executive the exclusive power to
formulate recognition policy. She roots her claim in the
Constitution’s declaration that the President shall
“receive Ambassadors and other public Ministers.”
U. S. Const., Art. II, §3. According to the Secretary,
“[c]enturies-long Executive Branch practice, congressional
acquiescence, and decisions by this Court” confirm that the
“receive Ambassadors” clause confers upon the Executive
the exclusive power of recognition. Brief for Respondent 18.
The Secretary observes that “President
Washington and his cabinet unanimously decided that the President
could receive the ambassador from the new government of France
without first consulting Congress.” Id.,
at 19 (citing
Letter from George Washington to the Cabinet (Apr. 18, 1793),
reprinted in 25 Papers of Thomas Jefferson 568–569 (J.
Catanzariti ed. 1992); Thomas Jefferson, Notes on
Washington’s Questions on Neutrality and the Alliance with
France (May 6, 1793), reprinted in id.,
She notes, too, that early attempts by the Legislature to affect
recognition policy were regularly “re- jected in Congress as
inappropriate incursions into the Executive Branch’s
constitutional authority.” Brief for Respondent 21. And she
cites precedents from this Court stating that “[p]olitical
recognition is exclusively a function of the Executive.”
Banco Nacional de Cuba
, 376 U.S.
, 410 (1964); see Brief for Respondent 24–27 (citing,
e.g., United States
The Secretary further contends that §214(d)
constitutes an impermissible exercise of the recognition power
because “the decision as to how to describe the place of
birth . . . operates as an official statement of whether
the United States recognizes a state’s sovereignty over a
territorial area.” Brief for Respondent 38. The Secretary
will not “list as a place of birth a country whose
sovereignty over the relevant territory the United States does not
, at 39. Therefore, she claims,
“listing ‘Israel’ as the place of birth would
constitute an official decision by the United States to begin to
treat Jerusalem as a city located within Israel. ”
., at 38–39 (some internal quotation marks
For his part, Zivotofsky argues that, far from
being an exercise of the recognition power, §214(d) is instead
a “legitimate and permissible” exercise of
Congress’s “authority to legislate on the form and
content of a passport.” Brief for Petitioner 53. He points
the Court to Professor Louis Henkin’s observation that
“ ‘in the competition for power in foreign
relations,’ Congress has ‘an impressive array of powers
expressly enumerated in the Constitution.’ ”
at 45 (quoting L. Henkin, Foreign Affairs and the
United States Constitution 63 (2d ed. 1996)). Zivotofsky suggests
that Congress’s authority to enact §214(d) derives
specifically from its powers over naturalization, U. S.
Const., Art. I, §8, cl. 4, and foreign commerce, id.,
§8, cl. 3. According to Zivotofsky, Congress has used these
powers to pass laws regulating the content and issuance of
passports since 1856. See Brief for Petitioner 52 (citing Act of
Aug. 18, 1856, §23, 11Stat. 60).
Zivotofsky contends that §214(d) fits
squarely within this tradition. He notes that the State
Department’s designated representative stated in her
deposition for this litigation that the “place of
birth” entry is included only
as “an element of
identification.” App. 76 (Deposition of Catherine Barry,
Deputy Assistant Secretary of State for Overseas Citizens
Services); see Brief for Petitioner 10. Moreover, Zivotofsky
argues, the “place of birth” entry cannot be taken as a
means for recognizing foreign sovereigns, because the State
Department authorizes recording unrecognized territories—such
as the Gaza Strip and the West Bank—as places of birth. Brief
for Petitioner 43 (citing 7 Foreign Affairs Manual
§1383.5–5, App. 109–110).
Further, Zivotofsky claims that even if
§214(d) does implicate the recognition power, that is not a
power the Constitution commits exclusively to the Executive.
Zivotofsky argues that the Secretary is overreading the authority
granted to the President in the “receive Ambassadors”
clause. He observes that in the Federalist Papers, Alexander
Hamilton described the power conferred by this clause as
“more a matter of dignity than of authority,” and
called it “a circumstance, which will be without consequence
in the administration of the government.” The Federalist No.
69, p. 468 (J. Cooke ed. 1961); see Brief for Petitioner
37. Zivotofsky also points to other clauses in the Constitution,
such as Congress’s power to declare war, that suggest some
congressional role in recognition. Reply Brief for Petitioner 23
(citing U. S. Const., Art. I, §8, cl. 11). He
cites, for example, an 1836 message from President Jackson to
Congress, acknowledging that it is unclear who holds the authority
to recognize because it is a power “no where expressly dele-
gated” in the Constitution, and one that is
“necessarily involved in some of the great powers given to
Congress.” Message from the President of the United States
Upon the Subject of the Political, Military, and Civil Condition of
Texas, H. R. Doc. No. 35, 24th Cong., 2d Sess., 2; see Reply
Brief for Petitioner 11–12.
Zivotofsky argues that language from this
Court’s precedents suggesting the recognition power belongs
exclusively to the President is inapplicable to his claim, because
that language appeared in cases where the Court was asked to alter
recognition policy developed by the Executive in the absence of
congressional opposition. See Brief for Petitioner 44–46;
Reply Brief for Petitioner 18–19. Finally, Zivotofsky
contends that even if the “receive Ambassadors” clause
confers some exclusive recognition power on the President, simply
allowing a choice as to the “place of birth” entry on a
passport does not significantly intrude on that power.
Recitation of these arguments—which sound
in familiar principles of constitutional interpretation—is
enough to establish that this case does not “turn on
standards that defy judicial application.” Baker
U. S., at 211. Resolution of Zivotofksy’s claim demands
careful examination of the textual, structural, and historical
evidence put forward by the parties regarding the nature of the
statute and of the passport and recognition powers. This is what
courts do. The political question doctrine poses no bar to judicial
review of this case.
To say that Zivotofsky’s claim presents
issues the Judiciary is competent to resolve is not to say that
reaching a decision in this case is simple. Because the District
Court and the D. C. Circuit believed that review was barred by
the political question doctrine, we are without the benefit of
thorough lower court opinions to guide our analysis of the merits.
Ours is “a court of final review and not first view.”
Adarand Constructors, Inc.
, 534 U.S.
, 110 (2001) (per curiam
) (internal quotation marks
omitted). Ordinarily, “we do not decide in the first instance
issues not decided below.” National Collegiate Athletic
, 525 U.S.
, 470 (1999). In particular, when we reverse on a threshold
question, we typically remand for resolution of any claims the
lower courts’ error prevented them from addressing. See,
v. United States
, 564 U. S. ___, ___
(2011) (slip op., at 1–2) (reversing the Court of
Appeals’ determination on standing and remanding because the
“merits of petitioner’s challenge to the
statute’s validity are to be considered, in the first
instance, by the Court of Appeals”). We see no reason to
depart from this approach in this case. Having determined that this
case is justiciable, we leave it to the lower courts to consider
the merits in the first instance.
The judgment of the Court of Appeals for the
D. C. Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.