Wednesday, February 29, 2012

2011-2012 Supreme Court Term: MBZ v. Clinton, No. 10-699 (Political Question, Separation of Powers)

In 2002 Menachem Binyamin Zivotofsky was born in Jerusalem to American parents.  His parents applied to the State Department for a passport for him and requested that it show his place of birth as “Israel.”  The State Department instead listed his place of birth as "Jerusalem."  His parents brought this suit on his behalf requesting the courts to order the Justice Department to state on his passport that he was born in Israel.

The United States has followed a longstanding policy of not taking a position regarding whether Jerusalem is a part of Israel.  In keeping with that policy when Zivotofsky's parents applied for a passport for him the State Department listed Zivotovsky’s place of birth as “Jerusalem.”  However, in 2002 Congress enacted the Foreign Relations Authorization Act.  Section 214 of that statute is entitled "United States Policy With Respect to Jerusalem as the Capital of Israel."  In Section 214(d) of the Act Congress ordered the State Department to designate “Israel” as the country of birth for U.S. citizens born in Jerusalem at the request of the citizen or his guardian.

Zivotovsky rightly contends that the statute grants him the right to require the State Department to identify his place of birth on the passport as Israel.  The government contends that the statute is unconstitutional or that the central issue in the case is a "political question" that the courts do not have the power to adjudicate it.

The two issues presented in this case are: (1) Does this dispute between the President and Congress present a nonjusticiable “political question”?  (2) If this issue is not a political question, does the relevant provision of the Foreign Relations Authorization unconstitutionally invade the power of the President to conduct foreign relations?

 In Zivotofsky v. Secretary of State, 571 F.3d 1227, the D.C. Circuit Court of Appeals ruled that this case presented a “political question” because under the Constitution the President has non-reviewable discretion to decide whether or not to recognize foreign governments, and that this includes the discretion to determine whether or not a particular place is governed by a particular government.

The principal case relied upon by the majority of the Court of Appeals was Goldwater v. Carter, 444 U.S. 996 (1979), in which a plurality of the Court ruled that the issue before the Court was a "political question."  The facts that gave rise to that case were that President Jimmy Carter unilaterally abrogated a mutual-self defense treaty with Taiwan, and Senator Barry Goldwater and other members of Congress sued Carter to obtain a judicial order keeping the treaty in force.  Four justices, in an opinion by Justice Rehnquist, summarily dismissed the case without a full briefing or oral argument because they found that the issue it presented was a political question.  Two justices (Powell and Brennan) concurred in dismissing the case; these two justices found that the dispute was not "ripe" because Congress had not yet officially reacted to the President's announcement.

Although he concurred in the judgment that the case would have be dismissed on the ground that the dispute was not ripe, Justice Brennan wrote that he did not think that this was a political question.  Brennan added that if he were to reach the merits of the case he would rule that the President had the power to abrogate this treaty.  Justice Marshall concurred separately in dismissing the case but did not explain why he took that position.  Two justices, Blackmun and White, dissented on the ground  that they wanted the case to be fully briefed and argued before reaching a decision.

Blessed as it is with a plethora of opinions none of which commanded a majority of the Justices, the precedential value of Goldwater v. Carter is very limited.  But the principal division in Goldwater was between Rehnquist and Brennan - between finding that disputes of this kind present a political question, and ruling that the President has the sole and exclusive power to recognize foreign governments.
In Goldwater Justice Rehnquist proffered two principal reasons why the case involved a political question.  First, he found that the Constitution of the United States simply doesn't tell us whether the President has the unilateral power to abrogate a treaty in these circumstances.  Justice Rehnquist found that the Constitution does not contain any "judicially manageable" standards to resolve the dispute: 
while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty.
Second, Rehnquist and three other justices thought that this case presented a political question because it involved foreign affairs and possible military action:
I think that the justifications for concluding that the question here is political in nature are even more compelling than in [another case] because it involves foreign relations - specifically a treaty commitment to use military force in the defense of a foreign government if attacked.
If the case had been "ripe" for adjudication Justice Brennan would have reached the merits and would have ruled that the President had the power to abrogate the treaty because the President has the sole and exclusive power to recognize foreign governments.  Here is the key passage of Brennan's opinion on this point:
Abrogation of the defense treaty with Taiwan was a necessary incident to Executive recognition of the Peking Government, because the defense treaty was predicated upon the now-abandoned view that the Taiwan Government was the only legitimate political authority in China . Our cases firmly establish that the Constitution commits to the President alone the power to recognize, and withdraw recognition from, foreign regimes. See Banco Nacional de Cuba v. Sabbatino (1964); Baker v. Carr(1962); United States v. Pink (1942).
In tomorrow's post I will comment on what the attorneys and justices said at oral argument of this case.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

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