Congress enacted a statute stating that Americans born in Jerusalem may elect to have “Israel” listed as the place of birth on their passports. The State Department refused to follow that law, referring to its longstanding policy of not taking a position on the political status of Jerusalem. An American sued, invoking the statute, the Secretary of State, who in response said that courts have no authority to decide the case because it presented a political question.
In cases where a controversy involves a political question, where there is a demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable standards for resolving it, a court lacks the authority to decide the case.
Congress enacted the Foreign Relations Authorization Act in 2022 providing that Americans born in Jerusalem may elect to have “Israel” listed as the place of birth on their passports. The State Department’s Foreign Affairs Manual states that where the birthplace of the applicant is located in a disputed foreign territory, the city of birth may be written in the passport. The manual specifically directs that passport officials enter “Jerusalem” and should not write “Israel” as the place of birth on the passport. The congressional act sought to override the instruction of the Foreign Affairs Manuals. The President stated that the congressional act impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs.
Does the petitioner’s complaint that the Secretary should identify the petitioner’s son’s place of birth as “Jerusalem, Israel” in his passports have a viable claim?
Yes, because the question at issue does not involve a political question. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He merely seeks to determine whether he may vindicate his statutory right under the congressional act to choose to have Israel recorded on his passport as his place of birth. The existence of a statutory right is certainly relevant to the judicial power to decide the petitioner’s claim. Zivotofsky requests that the courts enforce a specific statutory right and to resolve his claim, the Court must decide if Zivotofsky’s interpretation of the statute is correct.
The Baker factors provide three distinct justifications for withholding judgment on the merits of a dispute: when a case would require a court to decide an issue whose resolutions is committed to a coordinate political department; when a dispute calls for decisionmaking beyond court’s competence; prudence may counsel against a court’s resolution of an issue presented. The final factor, while it lone rarely makes a case nonjusticiable, applies in our case. Because of the respect due to a coequal and and independent branch, courts should resist calls to question the good faith with which another branch attests to the authenticity of its internal acts. The Executive has shown its good faith in conducting the foreign affairs matters and thus the Court should abstain itself from considering the merits of the case.
Where an Act of Congress is in conflict with the Constitution, it is the duty of the courts to say what the law is. Here, determining the constitutionality of the congressional act involves deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law must be held invalid and Zivotofsky’s case should be dismissed. If the statute does not contravene the Presidential powers, the Secretary must be ordered to issue Zivotofsky’s passport that complies with the act at issue. Either way, however, the political question doctrine is not implicated. No policy under the political question doctrine suggests that Congress or the Executive can decide the constitutionality of a statute. That is the sole province for the courts.