1. Does this case involve a political question that cannot be heard by courts?
2. Did Congress interfere with the President’s constitutional foreign policy-making power by passing a law that requires the State Department to list “Israel” as the place of birth for American citizens born in Jerusalem?
In 2002, The House of Representative and the Senate passed the Foreign Relations Authorization Act (FRAA). Section 214(d) of the law stated, in part, that when making birth certificates for Americans born in Jerusalem, the State Department must list “Israel” as the place of birth at the citizen’s request. Because the ownership of Jerusalem is the source of conflict in the Middle East, it has been the State Department’s official policy not to recognize Jerusalem as the capital of Israel.
When President George W. Bush signed the bill into law later that year, he attached a “Signing Statement” declaring that Section 214(d) of the law was unconstitutional and would therefore not be enforced. He wrote that Congress’s attempt to change his official stance on Jerusalem was unlawful because Article II of the Constitution states that the executive branch (which is led by the President and includes the State Department) has the sole power to determine U.S. foreign policy.
At the District Court
When this case reached the United States District Court for the District of Columbia in 2007, District Judge Gladys Kessler dismissed the case. She issued a memorandum opinion stating that the case cannot be heard by courts because it involves a non-justiciable political question. The political question doctrine prevents the courts from hearing cases that they cannot properly resolve - either because the Constitution says that another branch of government should deal with the problem or because the case would require the court to use their personal discretion instead of legal principles. The District Court agreed with the government’s argument that, because the Constitution specifically gives the executive branch the exclusive power to deal with foreign affairs, the judicial branch cannot intervene and hear cases that would challenge the President’s foreign policy decisions. The Zivotofskys appealed the dismissal to the Court of Appeals for the District of Columbia.
Opinion of the Court of Appeals
The Court of Appeals unanimously agreed with the decision of the District Court and held that the case involves a political question and should be dismissed. Senior Circuit Judge Edwards filed a concurring opinion where he argued that the political question doctrine does not apply in this case. In his opinion, the main issue of the case was whether the law Congress passed was constitutional and that deciding constitutional questions is a key function of the court. Ultimately though, he agreed with the judgment because he found the section of the FRAA about Jerusalem was an unconstitutional intrusion on the President’s power to make foreign policy.
The Zivotofskys appealed to the Supreme Court of the United States by petitioning for a writ of certiorari. The Supreme Court granted the writ of certiorari on May 2, 2011. In granting certiorari, the Supreme Court decided to consider whether the case involved a political question, and further, the Court asked that both sides also argue whether Congress interfered with the President’s foreign affairs powers by passing the FRAA. Oral arguments are scheduled for November 7, 2011.
Marbury v. Madison, 5 U.S. 137 (1803)
“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. . . . [This power] respects the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. . . . [Such acts] can never be examinable by the Courts.”
Baker v. Carr, 369 U.S. 186 (1962)
There is no clear test for determining what issues involve political questions, however, courts must take into consideration a number of factors and look at each issue on a case-by-case basis to decide whether a political question is involved. Some of the key factors that Justice Brennan lists in this opinion include: whether there is a “constitutional commitment of the issue to a coordinate political department” and whether there is a “lack of judicially discoverable and manageable standards for resolving [the problem].” Therefore, if the Constitution grants exclusive power to a certain branch to deal with an issue, or if the courts are unable to decide the case using traditional legal standards, it is likely that the case will be dismissed as it involves a political question.
Article II, Section 3 of the Constitution of the United States of America
“[The President] shall receive ambassadors and other public ministers”
This clause has been interpreted to mean the President has the exclusive power to recognize foreign governments. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)
Curtiss-Wright Corporation was charged with violating an embargo on Bolivia by making illegal arms deliveries. The corporation challenged its charges by arguing that the President did not have the power to establish the embargo on Bolivia and that Congress had improperly delegated their power, therefore the embargo was void. In an 8-1 decision, the Court found that the President did have the power to establish the embargo, even though there is no explicit basis for that power found in the Constitution. The Court reasoned that the President has exclusive power to make foreign affairs decisions and that his authority to carry out foreign policy should not be limited to those specifically enumerated in the Constitution.
Goldwater v. Carter, 444 U.S. 996 (1979)
The Court was asked to decide whether the President had the constitutional authority to end a treaty with the Taiwan Government without the consent of Congress. The Constitution states that both the President and Congress must participate in the creation of foreign treaties, but it is silent on the procedure from ending them. In an 8-1 decision, the Court dismissed the case without hearing argument. Five Justices reasoned that the case involved a political question, therefore the President’s actions could not be challenged by judicial review. Justice Brennan dissented, asserting that the case does not involve a political question, but instead, involves interpreting the Constitution to decide the proper procedure for ending treaties.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
In this case brought by a detainee at Guantanamo Bay against Secretary of Defense, Donald Rumsfeld, the Court held that President Bush did not have constitutional authority to establish military commissions for dealing with detainees. The 5-3 majority held that the operation of these tribunals, as well as their procedures, violated military justice law and the standards set by the Geneva Convention and also that the Authorization for Use of Military Force did not expand the President’s powers. The three dissenting justices found that the Court did not have jurisdiction to hear that case, as Hamdan was an enemy combatant and Congress had previously passed a law that stated that detainees at Guantanamo Bay may not have their cases reviewed in United States courts.
Medellin v. Texas, 552 U.S. 491 (2008)
In a 6-3 decision, the Court found that the President does not have the unilateral authority to enforce an international treaty as domestic law. In this case, President Bush issued a memorandum asking a state court to review the conviction of a Mexican citizen who had been convicted of murder without learning about his right, under international law, to contact his embassy. The President, though he would normally not be permitted to interfere with proceedings in a state court, cited his constitutional authority to make foreign policy and to make treaties as justification for his action. The majority of the Court disagreed, however, holding that the President needs the support of Congress in order to enforce this international rule of law in a U.S. court.
Republic of Iraq v. Beaty, 556 U.S. ___ (2009)
The Court decided unanimously that the President did have the power to waive an exception to the Foreign Sovereign Immunities Act (FSIA) that would have allowed American prisoners of war to sue the Republic of Iraq. The District Court and the Court of Appeals both held that the President’s attempt to waive Iraq’s liability to suit after the fall of Saddam Hussein's regime was invalid. The Supreme Court reversed, finding that the President did effectively waive the exception to the FSIA and therefore, the courts do not have the power to hear the private lawsuit brought by Beaty, a prisoner of war, against the Republic of Iraq.
This chart could help with predicting the outcome of the case and how the Justices will vote. But be
careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]
Hamdan v. Rumsfeld (2006)
Medellin v. Texas (2008)
Republic of Iraq v. Beaty (2009)
Not yet on Court
Not yet on Court
Not yet on Court
Not yet on Court
Not yet on Court
The Justice voted that the President's Action was constitutional.
The Justice voted that the statute was unconstutional.
Not yet on Court
The Justice was not yet on the Court when the case was decided.
On appeal to the Supreme Court, the Zivotofskys first argue that the Court does have the power to decide the issue at hand and that the political question doctrine does not apply. They argue that the main issue of the case is whether the section of the law regarding Jerusalem was a constitutional use of Congress’s powers. Because it is well established that courts have the ability to decide cases about statutory interpretation and the separation of powers, this case should not be dismissed as a political question.
Second, the Zivotofskys argue that it was not Congress who violated the Constitution by legislating about Jerusalem, but the President who acted unconstitutionally by issuing a signing statement. Because of his use of the signing statement and his declaration that he would not enforce part of the law, President Bush essentially vetoed part of the act, while signing the rest of it into law. Similar powers, such as line-item veto power, have been struck down as unconstitutional by the courts.
On behalf of the government, Secretary of State Clinton argues that this case involves foreign policy matters that have been explicitly delegated to the executive branch, and therefore cannot be heard by the judicial branch.
As to the second issue, the government argues that President Bush was justified in refusing to uphold Section 214(d) of the FRAA because it was unconstitutional. By forcing the State Department to essentially recognize Jerusalem as a part of Israel, Congress was attempting to change the executive branch’s stance on Jerusalem. Because the Constitution gives the executive branch the sole power to determine foreign policy, the President correctly declared that Congress’s action was an unconstitutional interference with his power and therefore invalid.
The Justices reacted skeptically to the principal claim of Nathan Lewin, the Zivotofskys' lawyer, that the law in question is a mere passport statute, one that affects only 50,000 Jerusalem-born Americans and that finds ample constitutional support in Congress's long-recognized power to regulate immigration. If Congress wasn't trying to control foreign policy, Justice Alito asked, why is the title of Section 214 "United States Policy With Respect to Jerusalem as the Capital of Israel?" By Justice Kagan's reckoning, the relevant provision "seems to have everything to do with Congress’s declaration of a foreign policy.” Lewin’s fallback assertion that Congress and the president have always enjoyed co-equal recognition power was received coolly. And as Justice Scalia pointed out, Lewin was essentially arguing that a Congressional foreign-relations judgment should trump a presidential one. Justice Sotomayor may have tipped her hand in the exchange: "what entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?" Similarly, Justice Kennedy called Lewin's position a "narrow, crabbed interpretation of the president's foreign-affairs power."
Solicitor General Donald Verrilli Jr. contended that the Constitution commits the foreign-recognition power exclusively to the president, so the Court should dismiss the case under the “textually demonstrable commitment” prong of the political question doctrine. Justice Kennedy asked Verrilli why the government wouldn’t prefer the Court to declare that Congress had wrongly curtailed a presidential prerogative, as this would produce the same outcome and more clearly serve the long-term interest of the executive. Justice Ginsburg voiced concern with an apparent incoherence in the political question doctrine as it stands: to decide that this is a political question because the Constitution gives the power to the president alone is effectively to rule on the merits in favor of the executive.
The Justices pushed the advocates to the limits of their constitutional theories and elicited absolutist affirmations (perhaps disturbingly so) from both men. Justice Sotomayor seemed committed to convincing her colleagues that use of the political question doctrine here will unwisely implicate the Court in a presidential policy of refusing to execute duly enacted legislation.
Write the Opinion - M.B.Z. v. Clinton Badge (200 Points)
Pretend you are the Justices of the Supreme Court. Vote as a class how this case should be decided, and write an opinion discussing how this case should be resolved. If your classmates do not all agree, write concurring and dissenting opinions to explore all of your different understandings of the case. Each opinion should be at least 250 words, and reference at least three of the cases listed in the Relevant Precedents section.
Friend of the Court - Amicus Brief Badge (150 points)
Pretend that you are a lawyer and you represent either a supporter of the United States recognizing Jerusalem as the Capital of Israel, or a group supporting the President’s strong executive foreign power. Write a 200 word Amicus (latin for Friend of the Court) Brief, arguing why the Court should consider the interests of your client. The goal of an amicus brief is to provide information to the court about the implications of their decision beyond the affect it will have on the two parties who appear before them. Be sure to include citations to the cases, and make a strong policy argument why your side should win. Write a blog post of at least 150 words exploring this issue.
The President and National Security Decisions - Podcast Badge (150 points)
Closely related to the President’s exclusive power to make foreign policy is his power to make decisions that affect our national security. In the wake of the 9/11 terrorist attacks, President Bush declared a War on Terror and expressed the belief that the executive should have nearly unlimited power to make national security decisions. Based on this power, Congress passed and President Bush signed the USA PATRIOT Act, which expanded the ability of the federal government to use wiretapping and surveillance in order to gather intelligence on potential terrorists. While some believe that this was an unconstitutional expansion of executive power, others argue that these measures were necessary to promote national security and prevent future terrorist attacks. Choose one viewpoint and find someone to argue the other side, then record a 5-10 minute podcast in which you both discuss both sides of the issue.
The Validity of Signing Statements - Separation of Powers Badge (50 points)
Once Congress has passed a bill, can the President sign it into law but declare that part of the law will not be enforced because it is unconstitutional? What should happen if the courts do not agree? Is the practice of issuing Signing Statements consistent with the procedure laid out in the Constitution?
Article I, section 7, clause 2: “Every bill which shall have passed through the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his objections to that House in which is shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it.”
Consider the above text and write a blog post of at least 150 words discussing whether Signing Statements are constitutional and whether the Court would have the power to declare that a President has acted unconstitutionally if he refuses to enforce part of a law pursuant to an earlier Signing Statement.
Executive Authority and Foreign Conflict - Constitutional Law Badge (50 points)
While the Constitution gives Congress the sole authority to declare war, the President’s power as Commander in Chief has justified his ability to deploy American troops to participate in areas of conflict like Bosnia and Haiti. Where should the line be drawn to distinguish Congress’s power to declare war and the President’s power to deploy troops? What should happen if Congress disagrees with the President’s decision to send U.S. troops to a certain area? Based on the brief overview of the political question doctrine given here, do you think that these kinds of issues should be heard by the courts? Write a blog post of at least 150 words exploring this issue.
Historical Context - Separation of Powers Badge (50 points)
The main conflict in this case is based on a key component of the Constitution - that powers and responsibilities are carefully divided between three branches of government. Why do you think the Framers of the Constitution structured our government this way? What about their experience with the British monarchy may have caused them to make these decisions? Write a blog post of at least 150 words exploring this issue.