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Michael Ramsey


Three Cheers for Zivotofsky v. Clinton
Michael Ramsey

For decades, two cases made the political question doctrine an ordeal for students and practitioners alike: Justice Brennan’s indeterminate multi-factor analysis in Baker v. Carr and then-Justice Rehnquist’s unexplained plurality pronouncement in Goldwater v. Carter.  These are now refreshingly abandoned in Zivotofsky v. Clinton, Monday’s opinion by Chief Justice Roberts that puts the political question doctrine on a narrower and sounder footing. 

Zivotofsky v. Clinton is the Jerusalem passport case.  Zivotofsky is a U.S. citizen born in Jerusalem, and his parents want his U.S. passport to reflect that he was born in Israel.  State Department policy is to have passports reflect only birth in Jerusalem, without indicating a country, to avoid taking a position on Jerusalem’s contested status.  But a federal statute, Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, directs that in such situations, at the request of the passport holder, the Secretary of State shall issue a passport reflecting birth in Jerusalem, Israel.  Secretary of State Clinton refused to comply with the statute, contending that it unconstitutionally interferes with the President’s power over foreign relations.  The lower courts rejected the parents’ suit without reaching the constitutional issue because they said it was a “political question” – that is, something that should be resolved between the President and Congress without the courts getting involved.  Chief Justice Roberts, writing for a six-Justice majority, flatly rejected that conclusion and directed the lower courts to reach the merits. 

According to Roberts, “political questions” arise in only situations (1) where the Constitution’s text itself directly gives the decision to another branch of government, or (2) where there are no judicially manageable standards under which a court could decide.  Neither situation existed in Zivotofsky, he said.  The constitutional issue involved application of the ordinary tools of interpretation – text, structure, and history – and although it might not be an easy question, it was of the type courts routinely handled.  He stressed that the courts were not being asked to decide on the status of Jerusalem, only to decide which branch – Congress or President – had constitutional authority to resolve that question.  Quoting Marbury v. Madison’s observation that it is “emphatically the province and duty of the judicial department to say what the law is,” the Chief Justice found no basis for the courts not to act in their ordinary role in Zivotofsy.  This strong statement of judicial power and duty is especially notable because the case involved foreign affairs and a high-level dispute between the President and Congress, two circumstances that courts and commentators had previously thought would suggest application of the political question doctrine.

I think the new opinion has it exactly right, on three dimensions.

(1)  It’s the end of the Baker and Goldwater analyses.  No one who teaches or practices in the fields of separation of powers or foreign relations law will mourn the passing of Baker v. Carr.  Justice Brennan’s desultory, meandering discussion, distilled by later courts and commentary into a comprehensive-yet-indeterminate six (or perhaps seven) factor “test,” tormented generations of law students and practitioners, whose exams and briefs dutifully plodded through each of its factors to no apparent purpose or effect.  Equally frustrating, for the opposite reason, was Justice Rehnquist’s plurality in Goldwater, the Taiwan treaty termination case, which concluded that the political question doctrine was particularly “compelling … because [the case] involves foreign relations” – with no explanation why that should be, and no acknowledgement that in other cases dating to the founding era the Court had decided the merits of foreign relations cases without even considering the political question doctrine.

Roberts' opinion treats these discussions with the respect they deserve: none.  Baker, which commentators had regarded as the leading case in the field, rates barely a mention – and its multiplicity of factors is simply ignored.  It is left to Justice Sotomayor in concurrence and Justice Breyer in dissent to once again (but perhaps for the last time!) slog through the six (or was it seven?) factors and reach opposing results.  And Rehnquist’s ipse dixit that foreign affairs disputes are uniquely nonjusticiable is (in a foreign affairs case) not cited at all.

(2) The new test is the right oneMarbury, Roberts’ opinion emphasizes, declares that it is the province and duty of courts to saw what the law is.  I think that’s right, as an originalist matter (if you accept that Marbury’s version of judicial review is correct, as I do).  Judges swear an oath to uphold the Constitution; upholding the Constitution includes enforcing statutes that are constitutional and refusing to enforce ones that aren’t.  That duty isn’t subject to a multi-factor balancing test or a foreign affairs exception. 

The Baker factors most conspicuously omitted in Zivotofsky involve the supposed need that the judiciary not embarrass or contradict the executive.  But sometimes executives need to be embarrassed or contradicted.  An indeterminate test that in effect allows courts to refrain from deciding (if they feel like it) is the opposite of the rule of law and the opposite of an executive under law.  If we suppose that the Constitution envisions an executive under law, the political question doctrine as formulated in Baker and (especially) Goldwater seems singularly inappropriate.

Nonetheless, courts might be relieved of their constitutional duty to decide in two circumstances: if the Constitution directly places the power to decide a particular issue elsewhere, or if the source of law invoked in the case is so vague or aspirational that there is simply no rule of law to apply.  These correspond to the two situations Roberts lists:

In general, the Judiciary has a responsibility to decide cases properly before it, even those it “would gladly avoid.” Cohens v. Virginia, 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. v. American Cetacean Soc., 478 U. S. 221, 230 (1986). We have explained 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, 228 (1993) (quoting Baker v. Carr, 369 U. S. 186, 217 (1962)). In such a case, we have held that a court lacks the authority to decide the dispute before it.

To be sure, neither category is itself easily defined.  But they are (unlike Baker and Goldwater) theoretically defensible, and they are (also unlike Baker and Goldwater) “narrow exceptions.”  The new approach thus goes a long way toward restoring the rule of law in political question analysis.

(3) The opinion applies the new test firmly and correctly.  The opinion’s attempt to narrow and focus the doctrine would be for nothing if it then went on to find a political question in the particular case, but Roberts again has it exactly right:

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, 506 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 branch.” Freytag v. Commissioner, 501 U. S. 868, 878 (1991); [citing additional cases].  

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. Nixon, supra, at 228 (quoting Baker, supra, 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. . . .   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.

As a result, statutory and constitutional questions about foreign affairs are like statutory and constitutional questions in other fields.  They are committed to the judiciary, and the judiciary has the tools to decide them.  Again, that sounds exactly right to me.

I would add that early post-ratification history stongly supports the outcome here.  Courts routinely adjudicated foreign affairs/separation of powers cases arising from statutes and the Constitution, in cases like Little v. Barreme (1804) and Brown v. United States (1814).  In contrast, the leading early political question case in foreign affairs, United States v. Palmer (1818), held that courts should follow the political branches’ determination in deciding whether a revolutionary government in South America was legitimate; Chief Justice Marshall wrote for the Court that “such questions are generally rather political than legal in their character” and to decide otherwise “would transcend the limits prescribed to the judicial department.”  Unlike Little and Brown (and Zivotofsky), Palmer did not present a statutory or constitutional question. (Note: cites and more complete discussion of the early cases are in Chapter 16 of The Constitution’s Text in Foreign Affairs, which suggests an approach similar to what the Court adopted in Zivotofsky; I made some parallel comments specifically on Zivotofsky at the time it was argued, here).

In sum, Zivotofsky reflects a quiet restoration of the rule of law and formal separation of powers in an area once lost to indeterminate judicial policymaking.  It is, I think, characteristic of Chief Justice Roberts’ approach in a broader sense.