The U.S. Supreme Court today, in Zivotofsky v. Clinton, (Sup. Ct., March 26, 2012), held that the political question doctrine does not prevent federal courts from ruling in a dispute between Congress and the State Department over which branch of government may control the content of passports. At issue is the State Department's determination that the city of Jerusalem is still disputed territory, so that Americans born in Jerusalem are to have "Jerusalem", not "Israel", listed as their place of birth. In a 2003 statute, Congress mandated that those born in Jerusalem would now have the option of listing Israel as their place of birth. The Executive Branch claims that this statute unconstitutionally interferes with the President's constitutional authority to conduct the country's foreign affairs. Today's decision does not decide that dispute. It only holds that the lower courts may now tackle the question. The D.C. Circuit had held that the court could not get to that issue because the political question doctrine deprived them of jurisdiction over it. However, Chief Justice Roberts, writing for 6 justices, said that all the court is being asked to do is to decide the constitutionality of the Congressional statute.
The case will likely be remembered primarily for its discussions of the nuances of the political question doctrine. In a concurring opinion, Justice Sotomayor had a different view of the meaning of the political question doctrine. Justice Breyer agreed with her general approach to the political question doctrine, but, in a dissent, disagreed as to its application to the facts of this case. Justice Alito also wrote a concurring opinion. The Washington Post reports on the decision. [Thanks to Joel Katz (Relig & State in Israel) for the lead.]
