Opinion: Supreme Court decides Zivotofsky suit remains viable

On Monday, 9-year-old Menachem Zivotofsky won a resounding, if partial, victory from the Supreme Court in his litigation against the U.S. government. On an 8-1 vote, the Court decided that the courts can decide whether the President must obey a Congressional command to enter “Israel” in the identity papers of Americans born in Jerusalem.

The case stretches back to 2002, when Congress passed section 214(d) of the 2003 Foreign Relations Authorization Act. It states that when a U.S. citizen is born in Jerusalem, “the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” This was intended to change the practice of the Department of State, which simply records “Jerusalem” as the birthplace, as though the city were floating in the sky, unconnected to any country.

Then-President George W. Bush did two contradictory things. He signed the bill. And he simultaneously wrote in a “signing statement” that he wouldn’t enforce it, because Section 214(d) would “impermissibly 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.” In other words, only the President, not Congress, can decide whether the United States recognizes Jerusalem as being part of Israel. With his signing statement Bush in effect signed the law with one hand while vetoing it with the other.

Shortly thereafter, Menachem was born in Jerusalem to American citizens Rabbi Ari and Naomi Zivotofsky. (Note—Menachem was born in western Jerusalem, which has been Israeli since 1948.) American Consulate officials refused the parents’ request to enter “Israel” on Menachem’s consular report of birth abroad and U.S. passport. “Jerusalem” it must be, the bureaucrats insisted.

The Zivotofskys turned to Naomi’s high school friend, lawyer Alyza Lewin, and her father, constitutional scholar Nat Lewin. (Actually, it was Alyza who had nudged Naomi to test section 214(d).) The Lewins filed suit against the Secretary of State—currently Hillary Clinton, who, ironically, voted for section 214(d) when she was a New York senator.

The District Court dismissed the action on the ground that it presented a “political question.” This somewhat esoteric legal doctrine refers to a quarrel involving the two political branches into which the judiciary won’t intrude. The trial court reasoned that the Constitution commits the conduct of foreign policy, including the recognition of foreign sovereigns, to the executive branch. The court concluded that deciding the case would require it to decide the political status of Jerusalem, which it could not do.

This method of handling the case meant that the court could avoid the fundamental constitutional question at the heart of the case: Does the President or the Congress control American foreign policy? When they disagree, who wins?

On appeal, the Court of Appeals approved of the resolution based on the political question doctrine. But the Supreme Court disagreed.  Writing for the Court, Chief Justice Roberts held that “[t]he 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.”

The Court found that the lower courts got the wrong answer because they misconstrued the question: “Zivo¬tofsky does not ask the courts to determine whether Jeru¬salem is the capital of Israel. He instead seeks to deter¬mine whether he may vindicate his statutory right, under section 214(d), to choose to have Israel recorded on his passport as his place of birth. . . . 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.”

Section 214(d) implicates serious constitutional issues. But working out whether a statute is constitutional has long been part of the job description of judges, and does not become a “political question” just because it may have political repercussions.

Justices Sotomayor and Alito wrote concurring opinions in which they agreed with the result but not all of the reasoning in the Roberts opinion. Only Justice Breyer dissented. In his view, the political question doctrine includes prudential reasons to abstain from deciding, and it is imprudent to decide this case, based on “a judicial hesitancy to make decisions that have significant foreign policy implications.”

So is section 214(d) constitutional? Can Congress regulate passports? Does the President have the exclusive recognition power? In the end, which branch of the federal government holds the foreign policy steering wheel? It’s a cliff-hanger—the Court remanded the case back to the Court of Appeals for a further work-up. The Supreme Court doesn’t consider an issue “ripe” until the lower courts have chewed on it first. As Chief Justice Roberts remarked, “Ours is a court of final review and not first view.”

Some conclusions. Those who wanted—or feared—headlines like “Supreme Court decides Jerusalem is part of Israel” are no doubt disappointed—or relieved. But there’s no surprise here. The political question of the status of Jerusalem really was never before the Court.

Those who wanted the constitutional questions of separation of powers determined were also disappointed, but not surprised. It’s standard judicial practice to decide cases on narrow grounds and avoid constitutional issues when practicable. Those issues will now be considered by the Court of Appeals, and may return to the Supreme Court. “May,” not “will,” because the high court decides which cases it wants to hear, and the Justices won’t necessarily choose to finally sort out which branch controls foreign policy. It is, after all, a very difficult constitutional question.

The signing statement issue disappeared from view early on. This is too bad, since using a signing statement as a covert veto is surely unconstitutional. Constitutional law professor Barack Obama came to the White House criticizing Bush’s use of signing statements, but he has taken the same position on Section 214(d) and also refuses to enforce it.

Still, the case will have little to no impact on the 2012 presidential race. If Obama wanted to make a pro-Israel gesture, nothing would be easier than to reject the Bush signing statement, stop fighting the Zivotofskys and enforce Section 214(d). But we can predict that his failure to do so will not harm him politically, since it hasn’t yet.

In the meantime, the Zivotofskys are heading back to court. The end is not in sight. As Alyza Lewin dryly commented, “Menachem Zivotofsky has been our firm’s youngest client for the past nine years—since shortly after he was born. We hope that he will witness a successful conclusion to this litigation by the time he celebrates his Bar-Mitzvah.”

Attorney Paul Kujawsky wrote an amicus curiae brief for members of Congress supporting Zivotofsky in the Supreme Court.