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Flamm v. American Association of University Women

Citation. 566 U.S 189 (2012)
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Citation. 566 U.S 189 (2012)

Brief Fact Summary.

Congress enacted a statute under which an American born in Jerusalem wanted to have Israel as his place of birth on his American passport. However, the State of Department refused to follow the law because of its policy not to take a position on the political status of Jerusalem.

Synopsis of Rule of Law.

It is the province and duty of the judicial branch to say what the law is.

If a statute intrudes upon the President’s powers under the Constitution, the law must be invalidated.

Courts cannot avoid their responsibility merely “because the issues have political implications.”


A federal statute requires that Americans born in Jerusalem may elect to have “Israel” as their place of birth on their passports. The State of Department rejected to follow the statute because of its longstanding policy of not taking a position on the political status of Jerusalem. An American sued, invoking the statute. The Secretary of State argued that the courts have no authority to decide the case because it involves a political question.


  1. Does Zivotofsky’s claim involve a political question?
  2. Is the statute at issue constitutional?


  1. No. The lower court misunderstood Zivotofsky’s claim. The petitioner’s claim does not involve a political question. The petitioner merely requested the court to determine whether he may vindicate his statutory right under the statute to choose to have Israel recorded on his passport as his birth place. This requires the court to decide whether the petitioner’s interpretation of the statute is correct and whether the statute is constitutional, all of which are common judicial exercise.
  2. Determining the constitutionality of the statute depends on whether the statute intrudes upon Presidential powers. If so, Zivotofsky’s case should be dismissed. If not, the Secretary must issue Zivotofsky’s passport that complies with the statute. In either case, no political question doctrine is implicated.


Justice Breyer

Zivotofsky’s claim involves a political question because it arises in the field of foreign affairs and the courts must inevitably have to evaluate the foreign policy implications to determine the constitutional question at issue. Further, other branches have nonjudicial methods of working out the different foreign policy views.


The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own determination of what U.S policy toward Jerusalem should be. The petitioner merely asked the courts to enforce his statutory right. Moreover, courts cannot avoid their responsibility merely “because the issues have political implications.”

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