*1 рarents ZIVOTOFSKY, his and guardians, v. CLINTON, et ux. ZIVOTOFSKY SECRETARY OF STATE Argued No. 10-699. November 201 1 Decided March *2 Court, Scalia, J., which opinion of the in Roberts, C. delivered J., JJ., Sotomayor, Thomas, joined. and Kennedy, Ginsburg, Kagan, judgment, in concurring concurring opinion part an and filed Alito, J., I, filed J., joined post, p. 202. Breyer, which to Part J., filed a Breyer, 210. dis- opinion judgment, post, p. in the concurring senting opinion, post, p. Lewin
Nathan With him for petitioner. cause argued Alyza D. Lewin. on was the briefs
Solicitor Verrilli argued General for respond the cause Attorney Gen Assistant ent. him on brief were With Ginger D. Deputy Kneedler, West, eral Solicitor General Douglas Letter, Yelin, and Harold Anders, N. S. Lewis * Hongju Koh. the American urging filed for *Briefs amici curiae reversal were Greenwald, Lawyers Stephen R. Rob- by Association of Jewish and Jurists by Garson, League et al. Ségal; ert Anti-Defamation and Thomas for the Freeman, Gardener, Robbins, Steven Jeffrey Michael S. Steven M. Schwartz; for by Sheinberg; Project C. Michael W. Lawfare Randy M. Mastro et al. Members of United States Senate Kujawsky. Paul for Americans
Margaret Haggerty filed a brief Krawiec and Patrick H. urging amicus curiae affirmance. Peacе Now as Zionist B. filed a brief for the I. Susan Tuchman David Schoen and Organization of America as amicus curiae. opinion delivered the of the
Chief Justice Roberts Court. providing enacted a statute that Americans born may place Jerusalem elect to have “Israel” listed as the passports. Department
birth on their The State declined to citing longstanding policy taking law, follow that position its of not on the status Jerusalem. When sued an American who statute, invoked of State argued authority that the courts lacked decide the case presented political question. because Ap- it The Court of peals so held. courts, disagree. fully capable
We determining are may given whether this statute effect, or instead must be light struck down in conferred on the Executive *3 by the Constitution.
I A Foreign In 2002, enacted the Relations Authori- zation Act, Fiscal Year 116 Stat. 1350. Section 214 of Policy Respect the Act is entitled “United States with Capital Jerusalem as the Id., of Israel.” at 1365. The first express Congress’s two subsections “commitment” to relo- cating Embassy the United States in Israel to Jerusalem. funding Id., publication at 1365-1366. The third bars for of official Government documents do not list Jerusalem capital as Id., of Israel. at 1366. The fourth and final § provision, 214(d), only is the one stake in this case. Passport Entitled “Record of Place of Birth Israel for Pur- poses,” provides purposes registration “[f]or it nationality, passport birth, certification or issuance of a city United in States citizen Jerusalem, born the Secre- tary upon request shall, citizen or of the the citizen’s legal guardian, place record the of birth as Israel.” Ibid. Department’s Foreign
The State Affairs Manual states “[w]here birthplace applicant of the is located in ter- city ritory by country, disputed area of birth or another Foreign may passport.” 7 Affairs Manual in the be written specifically App. directs The manual §1383.5-2, passport should enter “JERUSALEM” officials should birthplace recording the when “not write Israel Jordan” passport. person Id., §1383, on a born Jerusalem App. .5-5, §§1383.1, 1383.5-4, 1383.1, 127; id., see also Exh. App. .5-6, 106, 108-110. 214(d) sought instruction allow- to override this
Section ing on have “Israel” recorded citizens born in Jerusalem to Foreign they signing passports Rela- if In their wish. George BushW. lаw, President tions Authorization Act into §214 “impermissibly interferes his belief that stated authority the Na- to conduct the President’s constitutional unitary foreign supervise executive tion’s affairs and Foreign Au- Signing Relations branch.” Statement on Papers Presi- of the Year Public Act, thorization Fiscal George p. Sept. dents, 30, 2002, Vol. Bush, W. mandatory,” if is “construed as
He added that the section constitutional the President’s then it would “interfere with position States, of the formulate speak affairs, determine for the Nation international recognition given states.” on which terms re- emphasizing He that “U. S. Ibid. concluded garding changed.” The President not Ibid. Jerusalem has 214(d). specific passport mandate made no reference to the *4 B Zivotofsky Binyamin in Je- was born Petitioner Menachem 214(d) § shortly was 17, after 2002, rusalem on October Zivotofsky’s parents citizens American enacted. were congressional accordingly enact- well, he was as virtue of §1401(c); Rogers 401 U. S. Bellei, ment. 8 C. see (1971) (foreign-born ac- citizens of American children “congressional gener- through quire citizenship at birth osity”). application Zivotofsky’s con- a mother filed report passport. sular of birth and a abroad United States requested place She that his of birth be listed as “Jerusalem, Israel,” on both U. officials documents. informed Zivotof- sky’s Department policy prohibits that mother State record- ing Zivotofsky’s place “Israel” as of birth. Pursuant that policy, Zivotofsky passport report a was issued and consular listing App. only of birth abroad “Jerusalem.” 19-20. Zivotofsky’sparents complaint against a on filed his behalf Zivotofsky sought declaratory of State. a judgment permanent injunction ordering and a the Secre- tary identify place his of birth as “Jerusalem, Israel,” Id., the official at documents. 17-18. The District Court granted Secretary’s complaint motion to dismiss the on grounds Zivotofsky standing that lacked that his presented complaint nonjusticiable political question. Appeals Court for the D. C. Circuit reversed, con-
cluding Zivotofsky standing. did have It then observed Zivotofsky originally that while “Jerusalem, had asked that “[b]oth passport, agree Israel,” be recorded on his sides 214(d) question [him] now is whether entitles to have just place ‘Israel’ listed as 444 F. his birth.” 3d (2006). The D. C. determined that Circuit additiоnal fac- development might helpful deciding tual whether this justiciable, parties disagreed was about the listing policy implications “Israel” alone as birth- place passport. Id., on It therefore re- 619-620. manded the to the case District Court. again jus-
The District
that the
found
case was not
Court
“[r]esolving [Zivotofsky’s]
explained
ticiable.
It
claim
require
necessarily
on the merits would
the Court to decide
Supp.
511 F.
status of Jerusalem.”
2d
(2007). Concluding
presented
po-
claim therefore
that the
question,
dismissed
case
lack
litical
Court
District
subject
jurisdiction.
matter
The D. C.
Circuit affirmed.
It reasoned
the Consti-
gives
recog-
tution
the exclusive
the Executive
*5
power
foreign sovereigns,
of this
the exercise
nize
and that
“deciding
Therefore,
the courts.
cannot
reviewed
passport...
must mark
of State
whether
court]
necessarily
[the
into
Zivotofsky requests
draw
would
decisionmaking
Ex-
to
leaves
an area of
Constitution
(2009).
D. C.
The
alone.”
I—! HH pre- Zivotofsky claim s lower courts concluded adjudi- political question therefore cannot be sents a disagree. cated. We Judiciary responsibility general, decide
In has gladly avoid.” properly beforе even those it “would it, cases *6 (1821). Virginia, prece- Cohens 6 264, Wheat. 404 Our exception a dents have identified narrow to that rule, known question” “political g., Japan as the See, doctrine. e. Whal- ing Soc., v. American Cetacean Assn. S. 230 controversy explained a We have “involves a political question textually . where is ‘a . . there demonstra- ble constitutional commitment of the issue to a coordinate political department; judicially or a lack of discoverable and ” manageable resolving it.’ standards for Nixon v. United (1993) (quoting States, U. S. Baker v. Carr, 369 (1962)). In a we case, such have held that a dispute court lacks the to decide the before it. political The lower courts ruled that this case involves a Zivotofsky’s deciding because claim would force the Judicial Branch to interfere with the President’s exercise of power constitutional committed to him alone. The District Zivotofsky Court understood the courts to ask “decide the political Supp. F. status of Jerusalem.” 511 2d, 103. This presented. Zivotofsky misunderstands the issue does not ask the capital courts to determine whethеr Jerusalem is the may of Israel. He instead seeks to determine whether he § statutory right, 214(d), vindicate his under to choose to passport place his have Israel recorded on his as of birth. part, questions For its the D. C. Circuit treated the two “[o]nly one the same. That court concluded that Congress power Executive —not and not the courts—has the policy regarding sovereignty define Israel’s over Je implement rusalem,” and also to “decide how best to policy.” Department’s at 1232. 3d, F. Because passport adopted implement rule was the President’s “ex keep clusive and unreviewable constitutional United States out of the debate over the status of Jerusa validity “nonjusticiable lem,” of that rule was itself a political question” that “the Constitution leaves to the Exec Id., Indeed, utive the D. alone.” at 1231-1233. C. Circuit’s 214(d) opinion does not even mention until the fifth only it analysis, paragraphs to dismiss and then its six position on the status “That took as irrelevant: Zivotofsky statutory gave action cause of %and Jerusalem [the] judiciary author has is of no moment to whether ... ity dispute Id., at 1233. to resolve this ....” certainly statutory right, however, is of a
The existence Zivotofsky’s Judiciary’s power claim. to the to decide relevant supplant being are not asked to The federal courts own the courts’ of the branches with decision policy to- United States unmoored determination of what requests Zivotofsky Instead, should ward be. Jerusalem *7 right. statutory specific To resolve a that the enforce courts Zivotofsky’s interpre- Judiciary if claim, the must decide his is whether the statute correct, tation of the statute is judicial exercise. constitutional. This is a familiar interpre dispute parties Moreover, not the because the do §214(d), question only the courts is real the tation Mar At least since the statute is whether constitutional. (1803), recognized bury have 1 137 we Madison, Cranch v. alleged Congress with the is to conflict an Act of that when duty province emphatically “[i]t the is Constitution, say department Id., at 177. is.” what law “ litiga duty [resolution of That will sometimes involve challenging one of tion the constitutional responsibil their avoid branches,” three but courts cannot political implications.” ity merely have “becаuse issues Chadha, 919, INS v. 943 214(d) constitutionality § determining
In case, impermissibly deciding in- involves whether the statute upon powers If the Constitution. trudes Presidential under Zivotofsky’s case should must be so, the law invalidated other If, on the state a claim. for failure to dismissed powers, on the President’s hand, the statute does not trench Zivotofsky Secretary to issue then the must be ordered 214(d). politi- complies way, passport Either underly- question implicated. is “No cal doctrine not ing political question suggests Congress doctrine constitutionality . . Executive . can decide the of a stat- ute; Id., is decision the courts.” at 941-942. textually The contends that “there is ‘a demon- ” strable constitutional commitment’ President of the power foreign sovereigns recognize sole and, as corol- lary, to determine whether an American born in Jerusalem may place choose to have Israel listed his birth on his passport. supra, (quoting supra, Nixon, at 228 Baker, 217); Respondent Perhaps. see Brief for 49-50. But there is, course, no exclusive commitment to the Executive of constitutionality to determine the of a statute. appropriatеly authority, Judicial Branch exercises including this, a case such as where the “aggrandizing whether power or the Executive its expense Freytag at the of another branch.” v. Com- (1991); g., Myers missioner, 501 U. e. see, S. (1926)(finding States, S. 52, a statute un- upon constitutional because it encroached President’s (1986) power); Synar, removal Bowsher v. 478 U. S. (finding a statute unconstitutional because it “intruded into function”); the executive v. Olson, Morrison (1988) (upholding against *8 constitutionality 685 a statute’s charge “impermissibly interfere^] that it with the Presi- functions”). constitutionally appointed dent’s exercise his precedents political question also the Our have found doc- “ implicated judicially trine when is ‘a lack of there discover- ” manageable question resolving’ and able standards for (quoting before Nixon, S., the court. 228 506 U. at Baker, 217). Framing S., at the issue as lower courts Judiciary may politi- did, in terms of whether the decide the certainly cal Jerusalem, status of raises those concerns. They recognized dissipate, however, when issue is to be 214(d). § constitutionality the more focused one of the In- legal arguments regarding both deed, sides offer detailеd 214(d) § light powers whether in com- constitutional 198 Congress’s powers own whether Executive,
mitted to analyzing passports weighed respect must be to question. this Secretary reprises example, her on the merits
For claiming argument issue, on the power gives Executive exclusive Constitution policy. in the recognition her claim roots formulate She “receive shall Constitution’s declaration that the President Const., public Ministers.” Ambassadors and other “[c]enturies-long §3. Secretary, According II, Art. acquiescence, practice, congressional Executive Branch “receive Ambassa- that the decisions this Court” confirm power upon the exclusive Executive dors” clause confers Respondent recognition. 18. Brief for Washington Secretary that “President The observes unanimously re- the President could his decided that cabinet government France ceive from the the ambassador new (citing consulting Congress.” Id., Letter at without first 1793), (Apr. George Washington re- from the Cabinet (J. printed Papers 568-569 Catan- in 25 of Thomas Jefferson Washington’s 1992); Notes on Jefferson, zariti ed. Thomas Neutrality France Alliance with on and the Questions 665-666). (May 1793),reprinted id., notes, too, She recognition attempts by Legislature early to affect inappropriate “rejected regularly were author- constitutional into the Executive Branch’s incursions precedents ity.” Respondent And cites Brief she recognition stating “[political is'exclu- from Court sively Nacional de Banco the Executive.” function of (1964); see Brief Sabbatino, Cuba v. S. g., Respondent (citing, Pink, e. States (1942)). U. S. 214(d) constitutes further contends
impermissible recognition because exercise of place . . birth . “the to how describe the decision as *9 operates- as an statement of official whether the United sovereignty recognizes States a state’s over territorial Respondent area.” Brief for 38. will not country place sovereignty “list[] as whose birth over territory recog- the relevant the United States does not “listing nize.” Id., Therefore, claims, at she ‘Israel’ place an as the of birth would constitute official decision begin city the United to treat States to Jerusalem aas lo- (some quotation Id., cated within at 38-39 Israel.” internal omitted). marks part, Zivоtofsky argues being that,
For his far from an 214(d) § recognition power, “legiti- exercise of the is instead a permissible” Congress’s “authority mate and exercise of legislate passport.” on the of a form content Brief for points Petitioner 53. He Court Professor Hen- Louis “ competition kin’s ‘in for observation that in for- eign Congress ‘impressive array powers relations,’ has expressly Id., in the enumerated Constitution.’” (quoting Foreign Henkin, L. Affairs the United States (2d 1996)). Zivotofsky suggests Constitution ed. 214(d) §
Congress’s authority specifically enact derives § powers from naturalization, its over U. Const., I,Art. § and'foreign According id., commerce, cl. cl. 3. to Zivo- tofsky, powers pass regulat- has these used laws ing passports content and issuance since 1856. See (citing Aug. Brief 18, 1856, §23, for Petitioner 52 Act 60). Stat. 214(d)
Zivotofsky squarely contends that fits within this Department’s designated tradition. He notes that the State representative deposition litigation in her for stated “place entry only birth” is included “an element (Deposition App. Barry, of identification.” of Catherine Deputy Secretary Assistant State Overseas Citizens Services); Zivotofsky Moreover, see Brief Petitiоner 10. argues, entry “place of birth” be taken as a cannot means
200 recognizing foreign sovereigns, De- the State because
for recording unrecognized partment territories— authorizes places Strip West Bank—as the Gaza and the such as Foreign (citing Man- 7 Affairs Brief for Petitioner birth. 109-110). § App. 1383.5-5, ual 214(d) § Zivotofsky im- if does claims that even
Further, power power, plicate recognition Con- not a the that is Zivotofsky exclusively to the Executive. stitution commits authority overreading argues Secretary is granted to in the “receive Ambassadors” President Papers, Alexan- He that in the Federalist clause. observes power clause conferred der Hamilton described the authority,” dignity it and called “more matter of than as consequence in the be without circumstance, “a which will government.” Ño. The Federalist of the administration (J. 1961); p. Zivo- Petitioner 37. ed. Brief for Cooke see tofsky points such Constitution, in the also to other clauses power suggest Congress’s con- war, that some to declare Reply gressional recognition. Brief for Petitioner role 11). example, (citing Const., cites, Art. сl. He I, Congress, message ac- from Jackson President knowledging that it is unclear who holds expressly recognize dele- it “no where because “necessarily gated” in- that is Constitution, in the one Congress.” great powers given volved in some of the Message Upon United States from President Subject Military, Civil Condition Political, of the Reply Cong., see Sess., 2; Doc. 2d Texas, H. R. No. 24th Brief for 11-12. Petitioner prece-
Zivotofsky argues language from this Court’s exclusively power belongs suggesting recognition dents inapplicable because claim, to the to his President language appeared was asked the Court cases where policy developed recognition Executive to alter congressional opposition. Peti- Brief for See absence Finally, Reply Brief Petitioner 18-19. 44-46; tioner Zivotofsky that even if contends the “receive Ambassadors” recognition power clause exclusive confers some on the Pres- simply allowing “place ident, choice as of birth” entry passport significantly on a does not intrude on that power. arguments Recitation of these sound in familiar —which
principles interpretation enough of constitutional to es- *11 —is tablish that this on defy case does not “turn standards that judicial application.” Baker, S., 211. Resolution Zivotofsky’s claim demands careful examination of the tex- put by tual, structural, and historical evidence forward parties regarding pass- the nature of the statute and of the port recognition powers. and is This what courts do. The
political question poses doctrine no bar to review of this case.
Ill say Zivotofsky’s presents To claim issues the Judi ciary competent say reaching is to resolve is not to simple. decision in this case is Because District Court and D. by C. Circuit believed that review was barred political question we doctrine, are without the benefit thorough opinions guide analysis lower court our the merits. Ours is “a court final review and not first Constructors, view.” Adarand Inc. Mineta, U. S. curiam) (2001) (internal (per quotation 103, 110 marks omit ted). Ordinarily, in “we do not decide first instance Collegiate issues not decided below.” National Athletic particular, Smith, Assn. v. In question, typically when we reverse we on a threshold re pre any mand for resolution of claims the lower courts’ error e.g., addressing. vented them from See, Bond v. United (2011) (reversing Ap States, 564 U. Court peals’ standing remanding determination on because the petitioner’s validity challenge “merits of to the statute’s are Ap considered, instance, the first Court peals”). depart approach We see no from this reason justiciable, Having this case determined that
this ease. in the the merits to consider leave lower courts we it first instance. Appeals judgment C. Circuit for the D. Court of of the proceedings further is remanded vacated, the case opinion.
consistent with this
It is ordered. so joins Breyer whom Justice Sotomayor, Justice concurring part concurring in the I, as to Part judgment. proper application of Baker’s illustrates,
As this case lower generated in the confusion six factors substantial has case conclusion courts. I concur in Court’s question. separately, present I write does not required by inquiry I however, understand the because demanding political question than that more doctrine to be suggested Court.
I *12 amalgam speaks political question doctrine a рroperly whether examine circumstances in which courts dispute particular justiciable whether is, suit is —that appropriate The doctrine for courts. resolution “essentially separation powers,” Baker a function of the (1962), recognizes the limits which Carr, v. 369 appropriate imposes upon and accords that Article III courts respect own constitu- of their to the other branches’ exercise powers. tional in which Court six circumstances Baker,
In identified (1) textually question: might political present “a a an issue ato the issue commitment of demonstrable constitutional (2) judicially political department”; “a lack coordinate resolving it”; manageable discoverable and standards (3) deciding impossibility an initial “the without clearly nonjudicial discretion”;' a of kind determination (4) undertaking independent impossibility “the a court’s respect expressing resolution without lack of due coordi- (5) government”; nate “an branches unusual need for un- questioning political already adherence decision made”; (6) potentiality “the of embarrassment from multifarious pronouncements by departments question.” various on one “[u]nless Ibid. Baker established that one of these formula- bar, tions is inextricable from the there ease should be no nonjusticiability.” dismissal for Ibid. But Baker unan- left presence swered when the of one or more factors warrants interrelationship dismissal, well as the of the six factors importance determining and the relative of each in whether adjudication. a case is suitable for my justifi view,
In the Baker reflect factors three distinct withholding judgment dispute. cations for on the merits of require When a case would court to decide an issue whose textually political resolution is committed to a coordinate de partment, as envisioned first factor, Baker’s abstention is warranted because the court lacks to resolve that g., See, issue. e. Nixon v. States, United 506 S. (1993)(holding nonjusticiable impeachment pro the Senate’s light cedures in of Article I’s commitment to the Senate of “ try ”); Impeachments’ the ‘sole Power to all Mar see also (1803) bury (“By Madison, 1 Cranch 137, 165-166 the con president stitution of the States, is invested with important political powers, certain in the exercise of which only he is to discretion, use his own and is accountable to his conscience”). country in his to his character and own requires In such cases, the Constitution itself that another question presented. branch resolve the
The second and third Baker factors reflect circumstances dispute decisionmaking beyond which a calls for courts’ *13 “ competence. judicial by ‘The Power’ created Article III, judges 1, of the is Constitution not whatever to do,” choose but rather the “to act in the manner traditional for English and American Jubelirer, courts.” Vieth v. 541 U. S. (2004) (plurality opinion). 267, 278 That in- traditional role cognizable manageable application volves the of some Judiciary competence to ascertain standard within the of the employ When a court is of a concrete case. the facts dispute, given by adjudicate a or cannot standard which to no yet-unmade dispute de- of a resolve a absence charged political of branch, resolution termination ato by judicial beyond Article III. suit role envisioned (1973) (“[I]t g., Gilligan Morgan, See, e. v. activity governmental area of difficult to conceive of an “[t]he competence” than com- in which the have less courts composition, plex, professional as to decisions subtle, force”); military training, equipping, Vieth, aof and control (“One im- limitations S., of the most obvious U. at 278 posed by governed [Article judicial III] must is that action be ”). say, that courts course, standard ... This is not to of ambigu- interpreting applying incapable somewhat are or of statutory using or constitu- ous tools of standards familiar interpretation. an issue leaves courts But where tional truly validity” [the] there can' be “no doubt rudderless, judgment. a Ibid. court’s decision to abstain from circumstances address The final three Baker factors may against prudence court’s resolution which counsel particularly presented. cautious should issue Courts dispute forgoing adjudication on the basis of a before from multifarious risks “embarrassment intervention pronouncements question,” departments on one various express respect due coordinate branches would a “lack of the government,” need exists an “unusual there or because already unquestioning decision adherence to rejected repeatedly made.” at 217. We have S., a court is view that these are met whenever thresholds constitutionality propriety upon called resolve g.,e. United See, the act of another branch Government. (1990); Powell Munoz-Flores, States v. 495 S. may A court 486, 548, McCormack, merely adjudicate dispute a decision because not refuse
205 “may political significant have overtones” or affect “the con- Japan Whaling relations,” duct of this Nation’s (1986). Soc., Assn. v. 478 American Cetacean U. 230 221, may controversy Nor courts decline to resolve within their competence jurisdiction proper simply traditional and be- question consequences weighty, difficult, cause the the potential policy preferences or the real for conflict political of the exercise of branches. The such among “gravest dut[ies] most delicate that this Court perform,” Blodgett is called on to v. 275 Holden, 142, U. S. (1927)(Holmes, concurring), assigned 148 J., but it is role by may to courts “Questions Constitution. ocсur which gladly we would but cannot avoid avoid; we them. All we judgment, conscientiously can do to exercise our is, best perform Virginia, duty.” our v. Cohens 6 264, Wheat. 404 implicating Rare occasions Baker’s final factors, however, “ ”
may present judicial disposition. unfit for ‘unusual case’ argument (quoting at 218 S., of Daniel Webster in (1849)). Luther Borden, How. Because respect coequal independent department, due to a. properly good courts
instance,
resist
calls
authenticity
faith with which
another branch attests
g.,
of its
Field
See,
Clark,
internal acts.
e. Marshall
& Co.v.
(1892) (deeming
re-
672-673
“forbidden
spect
government” “[judi-
due to
a coordinate branch
requiring
conspiracy”
cial
action”
belief
“deliberate
Representatives
“to
Senate and House of
defeat an
will”);
expression
popular
of the
see also
Munoz-Flores,
(“Mu-
concurring
judgment)
at S.,
J.,
(Scalia,
regard
tual
branches,
the coordinate
and the
between
inter-
certainty,
representations
est of
both demand that official
re-
garding
process
accepted
. . .
matters
internal
at face
value”).
long acknowledged
have
Likewise, we
that courts
intervening
particularly
exigent disputes
are
ill
suited
finality
necessitating
“attributing
need for
to the ac-
unusual
departments,”
Miller,
Coleman v.
tion
(1939),
creating
[of]
“risk
embarrass
or
acute
government
grave
disturbance
abroad,
ment of our
*15
g.,
How.,
Luther,
e.
7
S.,
See,
369 U.
at
home,” Baker,
(“After
mili
called out the
43
has acted and
President
in
authorized
tia,
a Circuit Court of the United States
is
right?
judicial
quire
If the
his
...
whether
decision was
guarantee
in the Consti
far,
extends so
contained
anarchy,
guarantee
and
of
of
is a
tution
the United States
order”).1 Finally, may
appropriate
for courts
not
of
it
stay
questions con
implicating
delicate
their hand
cases
cerning
.political
coor
between
of
distribution
ripe,
dispute
inca
intractable, and
is
dinate branches until
process.
by
political
Goldwater
pable
See
of resolution
(1979) (Powell,
concurring in
J.,
444
S.
Carter,
996,
v.
U.
997
merely
inter
judgment).
Abstention
reflects
only
“legitimate
resort,”
last
in the
is
vention
such cases
339,
Chicago
Wellman, 143
S.
Co. v.
& Grand Trunk R.
prospect
(1892),
ac
of
to the
345
and
disfavored relative
political branches.
between the
cоmmodation
abstention accommodates
arise,
unusual cases
When such
powers
separation
of
in the
considerations inherent
au-
III,
conferred
Article
which
envisioned
limitations
backdrop that
thority
against common-law
courts
to federal
exceptional
recognized
propriety
cases.
abstention in
of
City New
Service, Inc. v. Council
Public
New Orleans
Shapiro,
(1989);
generally
see
350,
S.
359
Orleans, (1985)
L.
543
60 Y. U.
Rev.
Discretion,
N.
Jurisdiction and
1
(1827)
J.) (declin
Mott,
19,
(Story,
12
29-30
See also Martin
v.
Wheat.
arisen,”
“exigency
that an
has
ing to
President’s determination
review the
service,” recognizing
actual
necessitating
“call
the militia into
[of]
indispensa
unhesitating
to orders
obedience
prompt
“[a]
need for
(to
(1796) (Iredell, J., concurring)
199,
Hylton,
ble”);
v.
3 Dall.
260
Ware
on
void would turn
“considerations
treaty with Great Britain
declare
entirely
certainly
magnitude,
are]
[which
of extreme
considerations
policy,
Justice”).
of Court of
examination
decision
incompetent
207
(hereinafter
questions
Shapiro).
envisioned
categories
ground,
final
find
Baker’s
common
therefore,
many longstanding
which
doctrines under
considerаtions of
justiciability
comity
deciding
or
lead
courts
abstain from
questions whose initial resolution is better suited to another
g.,
Hospitality
Depart
time, see, e. National Park
Assn. v.
(2003)(ripeness);
ment
Interior,
808
(1980)
Geraghty,
States
Comm’n
Parole
v.
445 U. S.
(mootness);
g.,
Corp.
forum, see,
another
e.
Oil
v.
Gulf
(1947)
conveniens);
(forum
Gilbert,
non
Railroad
v.
Co.,
Comm’n Tex.
To be it will be the rare in case which final Baker’s nonjusticiable.2 long factors alone render a case But our recognizes exceptional historical tradition that such cases regard separation powers arise, and due for the and the role Article III envisioned confirms that absten- may appropriate response. tion be an
2Often when a implicated presenting such factors are in case a political question, other Baker factors identified will apparent. See, likewise be g., States, e. (1993) (“[i]n Nixon v. United 224, 236 addition to the textual argument,” finding persuasive commitment “opening the door “ of judicial impeachment procedures ‘expose review” of political would life of country months, ”); Carr, chaos’ Baker v. perhaps years, or (1962) Borden, Luther (explaining that the Court (1849), How. 1 present found with each of features associated the three factors). Baker’s underlying rationales
1—1 political presented case a The court held that this below court thought petitioner’s suit asked it because “textually ato coordinate an committed” decide issue Department namely, policy of the State “to review a branch— implementing, keep decision” to President’s States of Jerusalem. out the debate over status 2009). (CADC Largely for the reasons F. 1227,1231-1232 3d Appeals agree mis- set out I Court of Court, respects, apprehended how- In two its task. the-nature of political question my understanding doctrinе ever, analysis beyond might require engage in further a court to upon by the that relied Court. recognizes petitioner’s appropriately
First, Court justiciability statutory right “relevant” to claim to a inquiry required Ante, 196. In order in this case. presents question, a court evaluate whether a case being identify precision it is asked must the issue first petitioner’s stat- Here, to decide. suit claims that federal right his provides ute place him with a to have “Israel” listed passport other related documents. birth on his question, App. deter- court must 15-18. To decide constitutional, and therefore mine whether the statute is petitioner’s desired to issue mandates the of State passport, is at case his suit unconstitutional, which “textually com- is not one end. Resolution of that issue contrary, it is committed branch; mitted” to another *17 question require a court In this one. no fashion does policy toward Jeru- President’s review the wisdom the any aof the discretion salem or other decision committed to agree department. I that reason, For that coordinate decision should be reversed. below give say, rise
That thаt no statute could however, is not to impossible imagine political question. case to a It is not constitutionality involving application or even the nonjusticiable present In- that issue. enactment would deed, this refused to Court determine whether an Ohio state provision Republican constitutional offended the Guarantee holding “the Clause, IV, §4, Art. that of whether guarantee disregarded of the Constitution has been presents justiciable controversy.” no Ohio ex rel. Davis v. A Hildebrant, similar result passed pur- would follow if statute, instance, porting improperly to award financial relief to those “tried” impeachment adjudicate To offenses. claims under such require very a statute would a court to resolve same nonjusticiable examples issue we found in Nixon. Such atypical, they are but to show that the suffice foreclosure altogether, analysis political question statutory cases is unwarranted. suggests impli-
Second, the Court case does not political question cate the doctrine’s concern with ex- issues “ judicially hibiting manageable ‘a lack of discoverablе and ” parties’ arguments rely standards,’ at ante, 197,because the on textual, structural, historical evidence the kind routinely equally courts consider. But was true in a case Nixon, in which found that “the use of we the word 'try’ Impeachment in the first sentence of the Trial Clause precision any judicially manageable lacks sufficient to afford standard of review of the S., Senate’s actions.” 506 U. though parties’ We reached that even conclusion Impeachment upon briefs focused text of the Trial drafting history,” “contemporane- “the Clause, Constitution’s commentary,” practice of ous “the unbroken Senate for years,” dictionary meanings, contemporary “Hamilton’s essays,” practice Federalist House and the in the of Lords prior to ratification. more or less Such was no un- evidence rely parties familiar to courts than that on which the here. my upon In view, it is not the evidence whether which litigants rely is common to consideration that deter- judicially mines whether a case lacks discoverable and man- ageable Rather, standards. it is whether that evidence *18 meaningfully adjudicate provides the
fact a court basis to a presented. The answer will almost it issue with which is yes, parties’ always textual, structural, but if the wholly unilluminating, inapposite historical evidence guesswork, rendering case than decision no more relying ordinary arguments to offered courts kinds of on present might justiciability concerns. well still majority Appeals found case, however, In this the Court of political question solely required on the basis that this case “textually to the of an committed” Executive resolution issue commitment, I Branch. was such textual Because there no respectfully to reverse Court’s decision concur Appeals. of Court concurring judgment. Alito,
Justice namely, question, presents whether the This case a narrow statutory infringes power provision of Presi- issue passport. regulate does dent to of a This case the contents power require Judiciary to not whether the to decide foreign recognize governments of terri- and the extent their tory exclusively or is shared conferred on the President statutory Congress. not claim that the Petitioner does by Congress attempt provision question represents to regarding of Jerusa- the status dictate States Congress petitioner in effect that Instead, contends lem. power born has to an American citizen mandate that given including passport' option in his abroad be (CRBA) Report what amounts Birth Consular Abroad personal status of Jerusalem. belief on the statement of Congress cer- the Constitution conferred on Powers Congress prescribe tainly give a measure gives passports The Constitution contents and CRBAs. power regulate commerce, Art. I, power regulate cl. includes the §8, 3, and this Mayor country, entry persons Henderson into this see (1876). The Constitution New York, *19 gives Congress power also to make a Rule the “uniform of pursuant power, cl. Naturalization,” I, §8, Art. and to this Congress concerning citizenship has the enacted laws of chil- parents country, dren to who born abroad are citizens of this Wong see Ark, United States v. Kim 169 U. 649, powers identifying These allow to mandate that passports in information included and CRBAs. authority concerning of President also has a measure passports
the contents of CRBAs. The President has authority g., broad of affаirs, see, e. Amer- field (2003), ican Garamendi, Ins. Assn. v. 539 S. and, historically, authority power included that has to issue passports, any congressional even in the of absence formal Haig Agee, conferral of to so. v. do See (1981) “[p]rior (explaining 280, 293 that when there subject, perception was no statute the common on was passport that the issuance of a was committed to the sole discretion of and that the the Executive Executive would security exercise interests of the national States”). foreign policy of the United We have de- a of passport scribed “a letter introduction which the issuing sovereign requests vouches for the bearer and other sovereigns apparent Id., at 292. This is aid bearer.” petitioner’s page passport, from the first which reads as follows:
“The of the United of State States America hereby requests may permit all whom it concern to United citizen/national of the States named herein to pass delay without in case or hindrance and of need to give protection.” App. all lawful aid Similarly, a a CRBA is certification consular made а offi- citizenship acquired cial States bearer id., birth. See at 20. constitutionality determining law,
Under our case Congress may present political question, an Act of Ibut do question presented here falls think not narrow dividing category. Delineating precise line within that re- powers Congress President with and the between easy passport matter, but spect not contents agree it not constitute does I with the Court Judiciary unable decide. that the Breyer, Justice dissenting. opinion. Sotomayor’s join sheAs
I
I of Justice
Part
(1962),
forth
points
set
As Justice also four) (and embody my particularly in “circum view the last against prudence may a court’s in counsel stances which (opinion presented.” Ante, 204 con resolution of issue curring part concurring judgment); in see Nixon in (1993) concurring (Souter, J., States, 224, 253 (the “deriv[es] judgment) in political-question doctrine respect prudential large part we about from concerns political departments”); v. Carter, Goldwater owe (1979) (Powell, judgment) concurring in J., (“[T]he political-question part prudential doctrine rests on respect calling among concerns for mutual the three Government”); Standing Jaffe, branches of also see To Se Actions, cure Judicial Review: Public Harv. L. Rev. (1961)(prudence legal hesitation where counsels issue closely complex “felt to be sо to a related decisions not jurisdiction within the court’s its resolution poor jeopardize court would in itself either be or would complex”). larger sound decisions in the that the adds circumstances in which Sotomayor Justice prudential these lead the considerations Court not to decide properly a case otherwise before it are rare. Ante, at 207. agree. my I But in view we nonetheless have before such us prudential a case. Pour sets of considerations, taken to- gether, lead me to conclusion. foreign
First, the issue us arises the field of before (Indeed, provision statutory affairs. before us is a sub section of a section that concerns the relation between Foreign Jerusalem and the State of Israel. See 214 of the Relations Authorization (“United Fiscal Year Act, 2003,116 Stat. 1365 Policy Respect Jerusalem
States as the Israel”).) Capital primarily delegates The Constitution powers departments affairs “to *21 government, Legislative,” the not to Executive the Judi ciary. Chicago Lines, & Air Inc. Southern v. Waterman (1948); Corp., Marburg S. 333 U. S. 111 see also v. 103, (1803) (noting discretionary Madison, 137, 1 Cranch for 166 eign Secretary beyond of as affairs functions of State review). Judiciary of And that fact is not surprising. typically Decisionmaking highly in this area is political. “complex.” Chicago It is & “delicate” and South upon ern Air It Lines, S., at 111. often rests infor 333 readily mation to the Executive Branch and to available intelligence Congress, readily not committees of but avail frequently highly dependent able It courts. Ibid. upon “prophecy.” what Justice called Ibid. Jackson And
214 beyond policy foreign typically lies well of wise
the creation judge. capacity Ibid. experience professional or practi foreign issue, is at At the where affairs time, same speak voice and one “with cal need for the United States v. particularly important. States ac[t] See as one” is concurring); (1942) (Frankfurter, J., 242 203, 315 U. S. Pink, Shapiro, Manning, Hart D. Meltzer, Fallon, R. J. D. & see also System Federal and the and Wechsler’s The Federal Courts (6th 2009). 240 ed. hesitancy to make decisions
The result is a significant foreign policy implications, reflected have many has Court in which the in the fact cases political-question have arisen in doctrine invoked the depended treaty g., validity оf a cases in which the e. area, authority, v. upon Doe partner constitutional state’s continuing (1854), upon exist- 16 How. its Braden, 635, 657 (1902); cases 270, 285 Ames, v. ence, Terlinden foreign governments, bel- concerning states, the existence of 246 ligerents, insurgents, Oetjen Co., Leather v. Central (1918); 144, 5 Klintock, Wheat. 302 United States v. (1820); 610, 634-635 3 Wheat. Palmer, United States (1818); concerning cases the territorial boundaries foreign Co., 13 Pet. states, Williams v. Ins. Suffolk (1839); Baker, See Foster v. Pet. Neilson, principal supra, (citing as the Court’s these cases cases); foreign-relations Fallon, political-question see also supra, at 243-247. ques- answer the constitutional
Second, if courts must foreign they may to evaluate us, tion well have before policy implications constitu- The decisions. 214(d), statutory provision, question upon tional focuses request says: upon of a U. S. State, (or request upon the citizen’s born in citizen Jerusalem passport or legal guardian), citizen’s “record” in the shall place report as Israel.” of birth consular “the birth uncon- whether this statute And the Stat. 1366.
215 stitutionally seeks to limit the President’s inherent constitu authority foreign policy tional to make certain kinds of v. decisions. See American Ins. Garamendi, Assn. 539 U. S. (2003) (citing cases); City 396, 414-415 Clinton New v. (1998)(“[T]his recognized York, 524 U. 445 417, S. Court has degree that in arena, affairs the President ‘a has statutory of discretion and freedom from restriction which would not be domestic admissible were alone involved’” affairs (qu oting Curtiss-Wright Export United States v. Corp., (1936))); Youngstown cf. 304, 320 Sheet & (1952) (Jackson, Sawyer, Tube Co. 579, v. 637-638 concurring). J., argues that the State President’s'consti authority foreign policy
tutional to determine includes the power recognize foreign governments, to that this Court has long recognized power belongs that the latter to the Presi exclusively, power power dent includes deter disputed territory mine claims over as well as the governing recognition decisions, and that the statute uncon stitutionally limits exclusive President’s powers. exercise these Const., II, See U. S. Art. cl. §2, 2; g., Art. II, 3; e. Kennett v. Chambers, 38, 14 How.
(1852). (recognition); supra, (disputed at 420 Williams, ter (recognition ritory); supra, policy); 229 Pink, at see also (executive (1981) Haig Agee, passport 280, v. U. S. authority).
Zivotofsky, supported Congress, several Members of points grants Congress powers out that the Constitution also powers foreign affairs, related to such as the to declare war, regulate foreign regulate commerce, naturalization. See Art. I, 11; els. also American Ins. §.8, see Assn., supra, They Congress may at 414. add that share some recognition power its attendant of determin- ing disputed territory. g., supra, claims E. Palmer, over (recognition); States, Jones United (1890) (disputed territory). they add And *23 country
may concerning con into this enact laws travel cerning citizenship to S. citi abroad U. the of children born Mayor York, New zens. See Henderson of (1876) (travel); Ting Fong States, 149 v. United Yue . (1893) Wong (immigration); States v (1898)(citizenship). They argue Ark, Kim 169U. S. powers specify the content include the to these (or report). passport And when such of a specification consular birth they say, statutory law, takes form requires (through Constitution President State) II, See Art. to that statute. execute only statutory provision undisputedly concerned Were (or purely were enforcement administrative matters its matters), foreign undisputedly only major to involve might efforts to answer the constitutional foreign questions judges trying in not involve to answer policy. matters East, But in administrative the Middle beyond purely implications can have that extend far prove region in that can administrative. Political reactions may And in it well turn out uncertain. that context require argument will court resolution of constitutional beyond practice, reaches statute, decide how far the only purely determining but also administrative, not whether Pres- will interfere with the to which enforcement extent ability significant recognition-related make ident’s policy decisions. Zivotofsky,
Certainly parties argue if that were so. pass- argues example, replacing on his “Jerusalem” signifi- port foreign policy no with “Israel” will have serious Reply Brief 43, 46-52; cance. Brief for Petitioner See (1) points support State he Petitioner 25-26. And birthplace designation Department statement official’s primarily while identification,” serves as “an element of (2) omitting recognition; that the State mention fact unrecognized Department territories has recorded births region, Strip Bank, Gaza and West in the such as the (3) apparently effect; without adverse the fact that some- (because timеs does Jerusalem what the Government calls errors”) carry “clerical with it the name “Israel” on certain again apparently official seriously documents, without ad- verse effect. App. See Brief for Petitioner 7-10, 15, 43, 50; Zivotofsky says, 50, 58-60, Moreover, 75-76. it is unfair allow the 100,000 so born in Americans cities that the recognizes *24 sovereignty, United States as under Israeli such right as Tel Aviv Haifa, or to a record that mentions denying privilege Israel, while that to the 50,000 or so Americans born in See Brief for Jerusalem. Petitioner 18- App. 20, 48-49; Secretary argues listing
At the same time, the that Israel (and passports reports) on the consular birth of Americans significantly born in foreign Jerusalem will have adverse policy Respondent says effects. See Brief for 8,37-41. She doing represent that would “'an so official decision begin city United States to treat Jerusalem a to as located interpreted within id., at 38-39, that it be “would Israel/” recognizing being as an official act of Jerusalem under sovereignty,” App. security Israeli our 56, and that “national consequently significantly interests” id., “would harmed,” “ says, signal, symbolically at 49. Such an action, she ‘would concretely, “‘recognizes that’” the United States city sovereign Jerusalem ais located within the terri- tory critically doing compromise of so “‘would Israel/” ability to work Israelis, of the United States Pales- region peace proc- tinians and in to farther the others ” App. Respondent ess.’ Brief 2; 52-53. She adds that very statutory provision the produced in enactment of stating in East
headlines the Middle “the U. S. recognizes capital.” now Id., Jerusalem as Israel’s at 231; Respondent App. Brief for 53-55, see 227-231. 10; also judge’s ability opposing A claims to evaluate of this kind judicial is minimal. At the effort to do so time, same risks inadvertently foreign policy jeopardizing sound decision-
making by
How, for
other branches
Government.
example,
or the extent
whether,
this Court to determine
adjudication nowit
of the
which,
to
continuation
will itself
effect?
orders
have
obtaining judicial
countervailing
interests
Third, the
partic
are not
determination
resolution
the constitutional
ularly strong
Zivotofsky
the kind
does not assert
ones.
bodily integrity,
e.g.,
property or
interest,
an interest
g.,
sought
protect.
traditionally
e.
See,
have
which courts
(1977)(enduring
Ingraham Wright,
430 S.
bodily
legal
integrity). Nor,
protection of
commitment
vindicating
importantly,
a basic
does he assert an interest
grants
right
individuals
of the kind that the Constitution
traditionally
protected from invasion
and that courts
have
emphasize
I
other
And
branches
Government.
in such cases
this fact
the need
action
because
foreign policy
trump
I
that have mentioned.
can
concerns
many
pointed
years ago, “Our courts
As Professor Jaffe
out
corpus
would,not
con
test the
to entertain habeas
refuse
alleged
stitutionality
imprisonment
Chinese
*25
closely
agent
imprisonment was
if it were
his
even
clear that
government.”
up with our
to the Chinese
bound
relations
Harv, Rev.,
Franck,
Ques
74
L.
also T.
Political
1304;see
(1992);
Bush,
63-64
Boumediene v.
tions/Judicial Answers
cf.
.
(2008)
723,
Zivotofsky
to
is akin
however,
that
asserts,
interest
(citizen
ideological
an
interest. See Brief
Petitioner
Haifa,
Tel
or
Jerusalem,
in
unlike
in
Aviv
born
citizen born
“option”
suppress
“specify
the name
not
does
have
country
ideology”);
also
his or
see
accords with
her
(State
in
Department policy
citizens born
id., at 19
bars
identifying
birthplace
a in manner
“from
their
Jerusalem
convictions”).
an
insofar as
their
And
conforms with
ideological,
purely
injury
courts
suffers an
individual
leaving
in-
matter,
have often refused to consider the
protection.
jured party
political
to look
branches for
g.,
(1986);
Charles,
E.
v.
476 U.
Diamond
S.
66-67
Sierra
(1972).
Club v.
Morton,
This is not
say
Zivotofsky’s
unimportant
claim
or that
injury
purely ideological.
is not serious or
that it is
even
It
point
suffering
is to
out that those
somewhat similar harms
political
have
had
to the
sometimes
look
branches for reso-
legal
lution of
Cf.
relevant
issues.
United States v. Richard-
(1974);
son, 418
Laird
Tatum,
need bring “embarrassment,” show will about that intervention potentially “respect”. branches, and for the other lack of disrupt pru- decisionmaking. these For sound political-question I reasons, would hold dential this case. consideration further bars doctrine Appeals’ similar conclusion. the Court of I would affirm And’ respect, I dissent. With