Disputed Territory: Where the birthplace of the applicant is located interritory disputed by another country, the city or area of birth may be written in the passport, if shown on the application and if included for use on the birthplace transcription guide ...But, see, Congress wasn't crazy about this, and in Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, they stated:
Birthplace in Jerusalem: For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem.
For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.In signing this provision into law, then-President George W. Bush issued a signing statement opposing its enforcement, a position to which the Obama administration has adhered:
Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.So the Zivotofsky family sued, saying that Congress should trump the State Department, and the lower courts punted, maintaining that the "political question" doctrine left this dispute for the president and Congress to settle between themselves, that courts were incompetent to weigh in on this question given the sensitivities.
In an 8-1 decision today, the Supreme Court disagreed, and ordered the lower courts to determine whether Congress' act was within its constitutional powers over foreign policy. Chief Justice Roberts penned the main opinion, for himself and Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan.
(Continue reading below the fold)
The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.”This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....
The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.
Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.”
In this case, determining the constitutionality of §214(d) involves deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law must be invalidated and Zivotofsky’s case should be dismissed for failure to state a claim. If, on the other hand, the statute does not trench on the President’s powers, then the Secretary must be ordered to issue Zivotofsky a passport that complies with §214(d). Either way, the political question doctrine is not implicated. “No policy underlying the political question doctrine suggests that Congress or the Executive . . . can decide the constitutionality of a statute; that is a decision for the courts.”
Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.Justice Alito has a brief concurrence, largely along the majority's lines as far as I can tell.
Justices Sotomayor and Breyer concur (well, and Breyer dissents) because they think it's a closer, tougher question and agree on what test should be applied, with Sotomayor aligning with the majority and Breyer believing that application of the test should keep courts out of this dispute:
The Constitution primarily delegates the foreign affairs powers “to the political departments of the government, Executive and Legislative,” not to the Judiciary. ...And that fact is not surprising. Decisionmaking in this area typically is highly political. It is “delicate” and “complex.” It often rests upon information readily available to the Executive Branch and to the intelligence committees of Congress, but not readily available to the courts. It frequently is highly dependent upon what Justice Jackson called “prophecy.” And the creation of wise foreign policy typically lies well beyond the experience or professional capacity of a judge. At the same time, where foreign affairs is at issue, the practical need for the United States to speak “with one voice and ac[t] as one,” is particularly important.... if the courts must answer the constitutional question before us, they may well have to evaluate the foreign policy implications of foreign policy decisions.To be clear: the Zivotofskys may still lose. The Courts may decide that this is an issue for the Executive Branch to decide, not Congress. But at least they now get their day in court to make their case.
... Were the statutory provision undisputedly concerned only with purely administrative matters (or were its enforcement undisputedly to involve only major foreign policy matters), judicial efforts to answer the constitutional question might not involve judges in trying to answer questions of foreign policy. But in the Middle East, administrative matters can have implications that extend far beyond the purely administrative. Political reactions in that region can prove uncertain. And in that context it may well turn out that resolution of the constitutional argument will require a court to decide how far the statute, in practice, reaches beyond the purely administrative, determining not only whether but also the extent to which enforcement will interfere with the President’s ability to make significant recognition-related foreign policy decisions.
...[T]he Secretary argues that listing Israel on the passports (and consular birth reports) of Americans born in Jerusalem will have significantly adverse foreign policy effects. She says that doing so would represent “ ‘an official decision by the United States to begin to treat Jerusalem as a city located within Israel,’ ”that it “would be interpreted as an official act of recognizing Jerusalem as being under Israeli sovereignty,” and that our “national security interests” consequently “would be significantly harmed.”
...A judge’s ability to evaluate opposing claims of this kind is minimal. At the same time, a judicial effort to do so risks inadvertently jeopardizing sound foreign policy decisionmaking by the other branches of Government. How, for example, is this Court to determine whether, or the extent to which, the continuation of the adjudication that it now orders will itself have a foreign policy effect?