Mideast Conflict Puts Executive Power Question Before the Supreme Court

Nov 9, 2011

By Kristen Friend, staff writer – November 9, 2011

A case involving a nine-year-old boy and his passport is raising a centuries-old constitutional question about the roles of Congress and the presidency in creating foreign policy. The Supreme Court heard arguments in the case on Monday during which justices questioned attorneys for both sides with a healthy dose of skepticism.

The case is the first dealing with the issue of presidential power to come before the Supreme Court in several years. At its heart is a power dispute between two co-equal branches of government that each want to be able to determine foreign policy. The case may decide when the president can tell Congress what to do, when Congress can override the president and when the courts have jurisdiction to step in and resolve the conflict. It goes to the core of the constitutional designation for the roles each of the three branches of government have.

Does the executive or legislative branch have the power to craft foreign relations, and is that power exclusive to either branch? What does the Constitution say when foreign policy, as articulated by the executive branch, disagrees with a law passed by Congress? In this case, actions taken by the executive branch plainly violate the law, but the State Department claims it has the constitutional authority to do so. [1]

The seemingly innocuous question of a birthplace designation on a newborn’s passport was the initial cause of contention. Menachem Zivotofsky was born in Jerusalem in 2002. Since both of his parents are American citizens, he was automatically awarded U.S. citizenship. His mother requested that American authorities record his place of birth on both his birth certificate and passport as “Jerusalem, Israel”. The State Department refused on the basis that it does not officially recognize the sovereignty of any government over the city of Jerusalem. [2] All passports list the birthplace of a U.S. citizen born anywhere in Jerusalem as simply “Jerusalem”.

The official status of Jerusalem has been a divisive issue for decades. Israel considers Jerusalem to be its capital and has done so since it was established as an independent state in 1948. [3] However, the city has subsequently been separated, reunited, and fought over, often through armed clashes, with the local Palestinian Arab population. Few see hope that the conflict will end anytime soon.

Non-recognition of the sovereignty of any nation over the city of Jerusalem has therefore been official U.S. policy for more than 60 years when President Harry Truman refused to intervene in the foreign conflict. The designation of Jerusalem, according to the State Department, must be worked out in negotiations between Israel and Palestine. [4]

However, when Naomi Zivotofsky petitioned officials to add Israel to her son’s birth certificate, her timing was just right. In 2002, Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003. Section 214 of the Act 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 [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” [5] The law went into effect just a month before Mrs. Zivotofsky’s request.

In 2002, President George W. Bush chose not to veto the bill. Instead, he attached a signing statement declaring Section 214 as not mandatory. That part of the law was simply to be construed as advice. When signing the bill, the President stated that Section 214 “…impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs.” [6] Putting aside the fact that the concept of the signing statement raises its own constitutional questions, the declaration clearly put the policy of the State Department in direct violation of the law.

In 2003, buoyed by the new law, Menachem Zivotofsky, joined by his parents, sued the State Department. The suit demanded they follow the Foreign Relations Authorization Act as passed by Congress. In response, the State Department has insisted that Congress overstepped its bounds when it passed a law, albeit somewhat indirectly, that named Jerusalem as the capital of Israel.

The Supreme Court may choose to decide two questions. The original petition for certiorari asked the Court only to rule on the issue of whether the case could be adjudicated by federal courts. However, when granting certiorari, the Court also instructed both parties to explore the separation of powers issue. The request instructed attorneys for both parties to consider, “Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President’s power to recognize foreign sovereigns.” [7]

At the lower level, both the District Court and D.C. Circuit Court have declared that the case involves a nonjusticiable political question. [8] The case was dismissed at the District level, but then reversed and sent back by a Circuit Court judge. The District Court reaffirmed its initial ruling, and when the case was again appealed, the Circuit Court this time agreed.

The lower courts each relied heavily upon the political question doctrine in their decisions. The political question doctrine holds that a federal court may refuse to hear any case that deals with a purely political issue. [9] Federal courts can certainly hear a case involving controversial issues, as this is at the heart of their stated constitutional duty of interpreting the law. The political question doctrine applies only to lawsuits that attempt to involve the courts in disputes that deal with powers the Constitution clearly designates to either of the two political branches of government.

The Supreme Court has declared in the past that if there is a conflict involving a power and the Constitution clearly assigns a power to either the president or Congress, it is up to them to fight it out among themselves. Such disputes do not belong in federal courts. [10] There is direct precedent on the political question of foreign policy; the Court has held foreign relations are the exclusive province of the executive branch. [11]

During oral arguments, the Court questioned attorneys for both sides about whether it should even weigh in on the case. During the first half of arguments, Justice Antonin Scalia asked Nathan Lewin, arguing on behalf of the Zivotofskys, “Why is it any of our business which is the better foreign policy position?” Justice Scalia continued, “I would let…them conduct the usual inter-branch hand wrestling that goes on all the time, which probably means that if Congress cares enough Congress will win, because…it has an innumerable number of clubs with which to beat the executive. Why don’t we just let them go at it?” [12]

However, he seemingly reversed course during the second half of the arguments, saying, “You have a dispute between the two branches, and where that happens, I find it hard to say, well, you know, we can’t get into it…It seems to me we have to resolve that question.” [13]

Justice Steven Breyer also questioned whether judges could decide on the question of what constitutes foreign policy, stating, “Our real problem is these…words may really disrupt coherent foreign policy. Viewed that way, there are billions of words that might have the same effect. And do we know that these words will and some other words won’t? No, judges don’t know that.” [14]

However, justices also noted that if they decide the question is purely political and not an issue for the Court, that constitutes a de facto ruling in favor of the executive. In making the argument that the case is nonjusticiable, U.S. Solicitor General Donald Verrilli essentially claims that the executive branch can ignore any act of Congress that disagrees with presidential opinion as long as the president deems it to be a foreign policy issue. Justices seemed uneasy settling the issue in that manner, essentially allowing the executive branch to claim unchallenged authority when recognizing foreign nations and diminishing Congress’ role in shaping foreign policy.

Justice Sonia Sotomayor expressed this hesitation, asking, “What entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?” [15] Justice Sotomayor also questioned whether such extensive executive power was an appropriate precedent. “If we call this a political question and don’t address the merits, the outcome is that the president is saying that he’s entitled to ignore the Congress,” she said. “I don’t know what kind of message that sends, but it’s a little unsettling that a court charged with enforcing the laws passed by Congress are basically saying we are not going to determine whether this law is constitutional or unconstitutional.” [16]

Congress claims that the law just addresses a little passport issue that the executive branch is ascribing much more symbolism to than was intended. But it is hard to argue that Congress was not intentionally making a foreign policy declaration by implying that Jerusalem is a part of Israel. Justices clearly recognized the symbolism and seem to be leaning toward issuing a ruling on the merits.

The case is M.B.Z. v. Clinton, no. 10-699.

1. http://www.law.cornell.edu/supct/cert/10-699

2. http://www.scotusblog.com/2011/11/argument-preview-how-separate-are-the-powers/

3. http://www.mfa.gov.il/MFA/Jerusalem+Capital+of+Israel/

4. http://www.theatlantic.com/national/archive/2011/11/how-a-trivial-decision-could-land-the-supreme-court-in-foreign-policy-hell/248069/

5. Foreign Relations Authorization Act, Fiscal Year 2003, online at http://www.gpo.gov/fdsys/pkg/PLAW…/pdf/PLAW-107publ228.pdf

6. http://www.gpo.gov/fdsys/pkg/WCPD-2002-10-07/html/WCPD-2002-10-07-Pg1658-2.htm

7. http://lawprofessors.typepad.com/conlaw/2011/05/court-to-hear-challenge-to-presidents-foreign-affairs-power.html

8. Zivotofsky v. Secretary of State, 610 F. 3d 84 – Court of Appeals, Dist. of Columbia Circuit 2010, online at http://scholar.google.com/scholar_case?case=2250270912556877399&hl=en&as_sdt=2,10&as_vis=1

9. http://www.law.cornell.edu/wex/political_question_doctrine

10. http://www.oyez.org/cases/1960-1969/1960/1960_6

11. http://openjurist.org/246/us/297/oetjen-v-central-leather-co

12. http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2011/11/mbz_v_clinton_at_supreme_court_playing_politics_with_passports.2.html

13. Id.

14. http://www.politico.com/blogs/joshgerstein/1111/Supreme_Court_wrestles_with_Jerusalem_passport_case.html

15. http://www.scotusblog.com/2011/11/argument-recap-who-controls-foreign-policy/

16. http://www.nytimes.com/2011/11/08/us/dispute-over-jerusalem-engages-supreme-court.html

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