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Supreme Court Decides Zivotofsky v. Clinton: Passport Statute Does Not Present Political Question

This morning, Chief Justice John Roberts handed down the opinion for Zivotofsky v. Clinton (formerly M.B.Z. v. Clinton). You can check out the FantasyCast to jog your memory on the facts of the case. If you recall, Charlie and I attended the oral arguments back in November. After the arguments, I predicted that the Justices would decide the case on its merits, but they’ve proved me wrong.
Instead of deciding the separation of powers issue — whether Congress interfered with the President’s foreign policy power by passing a law that requires the Secretary of State to list “Jerusalem” as a part of Israel on passports and birth certificates — the eight Justices in the majority held only that the issue is not a political question. This decision means that the separation of powers issue will be remanded and that a court can decide whether the statute was a constitutional exercise of Congress’ power.
Justice Sotomayor concurred in the judgement. Although she agreed with the decision, Sotomayor believed the majority oversimplified the test for determining a political question. Justice Alito also concurred in the judgement.
Justice Breyer was the lone dissenter. Breyer agrees with Sotomayor’s assessment that the political question test is more complicated than the majority purports. In his analysis, however, Breyer found that the case does present a political question because of its “minimal need for judicial intervention” and because of a “serious risk that intervention will bring about ‘embarrassment,’ show lack of ‘respect’ for the other branches, and potentially disrupt sound foreign policy decisionmaking.”