Zivotofsky Ex Rel. Zivotofsky v. Clinton

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS,
ZIVOTOFSKY ET UX. v. CLINTON, SECRETARY
OF STATE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 10–699. Argued November 7, 2011—Decided March 26, 2012
Petitioner Menachem Binyamin Zivotofsky was born in Jerusalem. His
mother requested that Zivotofsky’s place of birth be listed as “Israel”
on a consular report of birth abroad and on his passport, pursuant to
§214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003.
That provision states: “For purposes of the registration of birth, certi-
fication of nationality, or issuance of a passport of a United States cit-
izen born in the city of Jerusalem, the Secretary shall, upon the re-
quest of the citizen or the citizen’s legal guardian, record the place of
birth as Israel.” U. S. officials refused the request, citing a State De-
partment policy that prohibits recording “Israel” as the place of birth
for those born in Jerusalem. Zivotofsky’s parents filed a suit on his
behalf against the Secretary of State. The District Court dismissed
the case, holding that it presented a nonjusticiable political question
regarding Jerusalem’s political status. The D. C. Circuit affirmed,
reasoning that the Constitution gives the Executive the exclusive
power to recognize foreign sovereigns, and that the exercise of that
power cannot be reviewed by the courts.
Held: The political question doctrine does not bar judicial review of Zi-
votofsky’s claim. Pp. 5−12.
(a) This Court has said that a controversy “involves a political
question . . . where there is ‘a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolv-
ing it.’ ” Nixon v. United States, 506 U. S. 224, 228. The lower courts
ruled that this case presents such a political question because they
2 ZIVOTOFSKY v. CLINTON
Syllabus
misunderstood the issue, assuming resolution of Zivotofsky’s claim
would require the Judiciary to define U. S. policy regarding the sta-
tus of Jerusalem. In fact, this case asks the courts to determine only
whether Zivotofsky can vindicate his statutory right under §214(d) to
choose to have Israel recorded as his place of birth on his passport.
Making such determinations is a familiar judicial exercise. Moreo-
ver, because the parties do not dispute the interpretation of §214(d),
the only real question for the courts is whether the statute is consti-
tutional. There is no “textually demonstrable constitutional com-
mitment” of that question to another branch: At least since Marbury
v. Madison, 1 Cranch 137, this Court has recognized that it is “em-
phatically the province and duty” of the Judiciary to determine the
constitutionality of a statute. Nor is there “a lack of judicially discov-
erable and manageable standards for resolving” the question: Both
parties offer detailed legal arguments concerning whether the textu-
al, structural, and historical evidence supports a determination that
§214(d) is constitutional. Pp. 5–12.
(b) Because the lower courts erroneously concluded that the case
presents a political question, they did not reach the merits of Zivo-
tofsky’s claim. This Court is “a court of final review and not first
view,” Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110, and
ordinarily “do[es] not decide in the first instance issues not decided
below,” National Collegiate Athletic Assn. v. Smith, 525 U. S. 459,
470. The merits of this case are therefore left to the lower courts to
consider in the first instance. P. 12.
571 F. 3d 1227, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, GINSBURG, and KAGAN, JJ., joined. SOTOMAYOR, J.,
filed an opinion concurring in part and concurring in the judgment, in
which BREYER, J., joined as to Part I. ALITO, J., filed an opinion concur-
ring in the judgment. BREYER, J., filed a dissenting opinion.
Cite as: 566 U. S. ____ (2012) 1
Opinion of the Court
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preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–699
_________________
MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS
AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN
ZIVOTOFSKY, PETITIONER v. HILLARY
RODHAM CLINTON, SECRETARY
OF STATE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 26, 2012]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Congress enacted a statute providing that Americans
born in Jerusalem may elect to have “Israel” listed as the
place of birth on their passports. The State Department
declined to follow that law, citing its longstanding policy of
not taking a position on the political status of Jerusalem.
When sued by an American who invoked the statute, the
Secretary of State argued that the courts lacked authority
to decide the case because it presented a political question.
The Court of Appeals so held.
We disagree. The courts are fully capable of determin-
ing whether this statute may be given effect, or instead
must be struck down in light of authority conferred on the
Executive by the Constitution.
I
A
In 2002, Congress enacted the Foreign Relations Au-
2 ZIVOTOFSKY v. CLINTON
Opinion of the Court
thorization Act, Fiscal Year 2003, 116 Stat. 1350. Section
214 of the Act is entitled “United States Policy with Re-
spect to Jerusalem as the Capital of Israel.” Id., at 1365.
The first two subsections express Congress’s “commit-
ment” to relocating the United States Embassy in Israel to
Jerusalem. Id., at 1365–1366. The third bars funding for
the publication of official Government documents that do
not list Jerusalem as the capital of Israel. Id., at 1366.
The fourth and final provision, §214(d), is the only one at
stake in this case. Entitled “Record of Place of Birth as
Israel for Passport Purposes,” it provides that “[f]or pur-
poses of the registration of birth, certification of national-
ity, or issuance of a passport of a United States citizen born
in the city of Jerusalem, the Secretary shall, upon the re-
quest of the citizen or the citizen’s legal guardian, record
the place of birth as Israel.” Ibid.
The State Department’s Foreign Affairs Manual states
that “[w]here the birthplace of the applicant is located
in territory disputed by another country, the city or area
of birth may be written in the passport.” 7 Foreign Affairs
Manual §1383.5–2, App. 108. The manual specifically
directs that passport officials should enter “JERUSALEM”
and should “not write Israel or Jordan” when recording
the birthplace of a person born in Jerusalem on a pass-
port. Id., §1383, Exh. 1383.1, App. 127; see also id.,
§§1383.1, 1383.5–4, .5–5, .5–6, App. 106, 108–110.
Section 214(d) sought to override this instruction by
allowing citizens born in Jerusalem to have “Israel” rec-
orded on their passports if they wish. In signing the For-
eign Relations Authorization Act into law, President
George W. Bush stated his belief that §214 “impermissibly
interferes with the President’s constitutional authority to
conduct the Nation’s foreign affairs and to supervise the
unitary executive branch.” Statement on Signing the
Foreign Relations Authorization Act, Fiscal Year 2003,
Public Papers of the Presidents, George W. Bush, Vol. 2,
Cite as: 566 U. S. ____ (2012) 3
Opinion of the Court
Sept. 30, 2002, p. 1698 (2005). He added that if the sec-
tion is “construed as mandatory,” then it would “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.” Ibid. He concluded
by emphasizing that “U. S. policy regarding Jerusalem has
not changed.” Ibid. The President made no specific refer-
ence to the passport mandate in §214(d).
B
Petitioner Menachem Binyamin Zivotofsky was born in
Jerusalem on October 17, 2002, shortly after §214(d) was
enacted. Zivotofsky’s parents were American citizens and
he accordingly was as well, by virtue of congressional
enactment. 8 U. S. C. §1401(c); see Rogers v. Bellei, 401
U. S. 815, 835 (1971) (foreign-born children of American
citizens acquire citizenship at birth through “congres-
sional generosity”). Zivotofsky’s mother filed an application
for a consular report of birth abroad and a United States
passport. She requested that his place of birth be listed as
“Jerusalem, Israel” on both documents. U. S. officials
informed Zivotofsky’s mother that State Department
policy prohibits recording “Israel” as Zivotofsky’s place of
birth. Pursuant to that policy, Zivotofsky was issued a
passport and consular report of birth abroad listing only
“Jerusalem.” App. 19–20.
Zivotofsky’s parents filed a complaint on his behalf
against the Secretary of State. Zivotofsky sought a de-
claratory judgment and a permanent injunction ordering
the Secretary to identify his place of birth as “Jerusalem,
Israel” in the official documents. Id., at 17–18. The Dis-
trict Court granted the Secretary’s motion to dismiss the
complaint on the grounds that Zivotofsky lacked standing
and that his complaint presented a nonjusticiable political
question.
4 ZIVOTOFSKY v. CLINTON
Opinion of the Court
The Court of Appeals for the D. C. Circuit reversed,
concluding that Zivotofsky did have standing. It then
observed that while Zivotofsky had originally asked that
“Jerusalem, Israel” be recorded on his passport, “[b]oth
sides agree that the question now is whether §214(d)
entitles [him] to have just ‘Israel’ listed as his place of
birth.” 444 F. 3d 614, 619 (2006). The D. C. Circuit de-
termined that additional factual development might be
helpful in deciding whether this question was justiciable,
as the parties disagreed about the foreign policy implica-
tions of listing “Israel” alone as a birthplace on the pass-
port. Id., at 619–620. It therefore remanded the case to
the District Court.
The District Court again found that the case was not
justiciable. It explained that “[r]esolving [Zivotofsky’s]
claim on the merits would necessarily require the Court to
decide the political status of Jerusalem.” 511 F. Supp. 2d
97, 103 (2007). Concluding that the claim therefore pre-
sented a political question, the District Court dismissed
the case for lack of subject matter jurisdiction.
The D. C. Circuit affirmed. It reasoned that the Consti-
tution gives the Executive the exclusive power to recognize
foreign sovereigns, and that the exercise of this power
cannot be reviewed by the courts. Therefore, “deciding
whether the Secretary of State must mark a passport . . .
as Zivotofsky requests would necessarily draw [the court]
into an area of decisionmaking the Constitution leaves to
the Executive alone.” 571 F. 3d 1227, 1232–1233 (2009).
The D. C. Circuit held that the political question doctrine
prohibits such an intrusion by the courts, and rejected any
suggestion that Congress’s decision to take “a position on
the status of Jerusalem” could change the analysis. Id., at
1233.
Judge Edwards concurred in the judgment, but wrote
separately to express his view that the political question
doctrine has no application to this case. He explained that
Cite as: 566 U. S. ____ (2012) 5
Opinion of the Court
the issue before the court was whether §214(d) “impermis-
sibly intrude[s] on the President’s exclusive power to
recognize foreign sovereigns.” Id., at 1234. That question,
he observed, involves “commonplace issues of statutory
and constitutional interpretation” plainly within the con-
stitutional authority of the Judiciary to decide. Id., at
1235. Reaching the merits, Judge Edwards determined
that designating Israel as a place of birth on a passport is
a policy “in furtherance of the recognition power.” Id., at
1243. Because in his view the Constitution gives that
power exclusively to the President, Judge Edwards found
§214(d) unconstitutional. For this reason, he concluded
that Zivotofsky had no viable cause of action, and con-
curred in affirming the dismissal of the complaint.
Zivotofsky petitioned for certiorari, and we granted
review. 563 U. S. ___ (2011).
II
The lower courts concluded that Zivotofsky’s claim
presents a political question and therefore cannot be ad-
judicated. We disagree.
In general, the Judiciary has a responsibility to decide
cases properly before it, even those it “would gladly avoid.”
Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Our prece-
dents have identified a narrow exception to that rule,
known as the “political question” doctrine. See, e.g., Ja-
pan Whaling Assn. v. American Cetacean Soc., 478 U. S.
221, 230 (1986). We have explained that a controversy
“involves a political question . . . where there is ‘a textu-
ally demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it.’ ”
Nixon v. United States, 506 U. S. 224, 228 (1993) (quoting
Baker v. Carr, 369 U. S. 186, 217 (1962)). In such a case,
we have held that a court lacks the authority to decide the
dispute before it.
6 ZIVOTOFSKY v. CLINTON
Opinion of the Court
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 exer-
cise of constitutional power committed to him alone. The
District Court understood Zivotofsky to ask the courts to
“decide the political status of Jerusalem.” 511 F. Supp. 2d,
at 103. This misunderstands the issue presented. Zivo-
tofsky does not ask the courts to determine whether Jeru-
salem is the capital of Israel. He instead seeks to deter-
mine whether he may vindicate his statutory right, under
§214(d), to choose to have Israel recorded on his passport
as his place of birth.
For its part, the D. C. Circuit treated the two questions
as one and the same. That court concluded that “[o]nly
the Executive—not Congress and not the courts—has the
power to define U. S. policy regarding Israel’s sovereignty
over Jerusalem,” and also to “decide how best to imple-
ment that policy.” 571 F. 3d, at 1232. Because the De-
partment’s passport rule was adopted to implement the
President’s “exclusive and unreviewable constitutional
power to keep the United States out of the debate over the
status of Jerusalem,” the validity of that rule was itself a
“nonjusticiable political question” that “the Constitution
leaves to the Executive alone.” Id., at 1231–1233. Indeed,
the D. C. Circuit’s opinion does not even mention §214(d)
until the fifth of its six paragraphs of analysis, and then
only to dismiss it as irrelevant: “That Congress took a
position on the status of Jerusalem and gave Zivotofsky a
statutory cause of action . . . is of no moment to whether
the judiciary has [the] authority to resolve this dispute
. . . .” Id., at 1233.
The existence of a statutory right, however, is certainly
relevant to the Judiciary’s power to decide Zivotofsky’s
claim. 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
Cite as: 566 U. S. ____ (2012) 7
Opinion of the Court
States policy toward Jerusalem should be. Instead, Zivo-
tofsky 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 inter-
pretation of §214(d), the only real question for the courts is
whether the statute is constitutional. At least since Mar-
bury 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 respon-
sibility merely “because the issues have political implica-
tions.” INS v. Chadha, 462 U. S. 919, 943 (1983).
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 Zivo-
tofsky 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 constitu-
tionality of a statute; that is a decision for the courts.” Id.,
at 941–942.
The Secretary contends that “there is ‘a textually de-
monstrable constitutional commitment’ ” to the President
of the sole power to recognize foreign sovereigns and, as
a corollary, to determine whether an American born in
Jerusalem may choose to have Israel listed as his place of
8 ZIVOTOFSKY v. CLINTON
Opinion of the Court
birth on his passport. Nixon, 506 U. S., at 228 (quoting
Baker, 369 U. S., at 217); see Brief for Respondent 49–50.
Perhaps. But there is, of course, no exclusive commitment
to the Executive of the power to determine the constitu-
tionality of a statute. The Judicial Branch appropriately
exercises that authority, including in a case such as this,
where the question is whether Congress or the Executive
is “aggrandizing its power at the expense of another
branch.” Freytag v. Commissioner, 501 U. S. 868, 878
(1991); see, e.g., Myers v. United States, 272 U. S. 52, 176
(1926) (finding a statute unconstitutional because it en-
croached upon the President’s removal power); Bowsher v.
Synar, 478 U. S. 714, 734 (1986) (finding a statute un-
constitutional because it “intruded into the executive
function”); Morrison v. Olson, 487 U. S. 654, 685 (1988)
(upholding a statute’s constitutionality against a charge
that it “impermissibly interfere[d] with the President’s
exercise of his constitutionally appointed functions”).
Our precedents have also found the political question
doctrine implicated when there is “ ‘a lack of judicially
discoverable and manageable standards for resolving’ ” the
question before the court. Nixon, supra, at 228 (quoting
Baker, supra, at 217). Framing the issue as the lower
courts did, in terms of whether the Judiciary may decide
the political status of Jerusalem, certainly raises those
concerns. They dissipate, however, when the issue is
recognized to be the more focused one of the constitution-
ality of §214(d). Indeed, both sides offer detailed legal
arguments regarding whether §214(d) is constitutional in
light of powers committed to the Executive, and whether
Congress’s own powers with respect to passports must be
weighed in analyzing this question.
For example, the Secretary reprises on the merits her
argument on the political question issue, claiming that the
Constitution gives the Executive the exclusive power to
formulate recognition policy. She roots her claim in the
Cite as: 566 U. S. ____ (2012) 9
Opinion of the Court
Constitution’s declaration that the President shall “receive
Ambassadors and other public Ministers.” U. S. Const.,
Art. II, §3. According to the Secretary, “[c]enturies-long
Executive Branch practice, congressional acquiescence,
and decisions by this Court” confirm that the “receive
Ambassadors” clause confers upon the Executive the
exclusive power of recognition. Brief for Respondent 18.
The Secretary observes that “President Washington and
his cabinet unanimously decided that the President could
receive the ambassador from the new government of
France without first consulting Congress.” Id., at 19
(citing Letter from George Washington to the Cabinet
(Apr. 18, 1793), reprinted in 25 Papers of Thomas Jeffer-
son 568–569 (J. Catanzariti ed. 1992); Thomas Jefferson,
Notes on Washington’s Questions on Neutrality and the
Alliance with France (May 6, 1793), reprinted in id., at
665–666). She notes, too, that early attempts by the Leg-
islature to affect recognition policy were regularly “re-
jected in Congress as inappropriate incursions into the
Executive Branch’s constitutional authority.” Brief for
Respondent 21. And she cites precedents from this Court
stating that “[p]olitical recognition is exclusively a func-
tion of the Executive.” Banco Nacional de Cuba v. Sab-
batino, 376 U. S. 398, 410 (1964); see Brief for Respondent
24–27 (citing, e.g., United States v. Pink, 315 U. S. 203(1942)).
The Secretary further contends that §214(d) constitutes
an impermissible exercise of the recognition power be-
cause “the decision as to how to describe the place of birth
. . . operates as an official statement of whether the United
States recognizes a state’s sovereignty over a territorial
area.” Brief for Respondent 38. The Secretary will not
“list[] as a place of birth a country whose sovereignty over
the relevant territory the United States does not recog-
nize.” Id., at 39. Therefore, she claims, “listing ‘Israel’ as
the place of birth would constitute an official decision by
10 ZIVOTOFSKY v. CLINTON
Opinion of the Court
the United States to begin to treat Jerusalem as a city
located within Israel. ” Id., at 38–39 (some internal quota-
tion marks omitted).
For his part, Zivotofsky argues that, far from being an
exercise of the recognition power, §214(d) is instead a
“legitimate and permissible” exercise of Congress’s “au-
thority to legislate on the form and content of a passport.”
Brief for Petitioner 53. He points the Court to Professor
Louis Henkin’s observation that “ ‘in the competition for
power in foreign relations,’ Congress has ‘an impressive
array of powers expressly enumerated in the Constitu-
tion.’ ” Id., at 45 (quoting L. Henkin, Foreign Affairs and
the United States Constitution 63 (2d ed. 1996)). Zivo-
tofsky suggests that Congress’s authority to enact §214(d)
derives specifically from its powers over naturalization,
U. S. Const., Art. I, §8, cl. 4, and foreign commerce, id., §8,
cl. 3. According to Zivotofsky, Congress has used these
powers to pass laws regulating the content and issuance of
passports since 1856. See Brief for Petitioner 52 (citing
Act of Aug. 18, 1856, §23, 11 Stat. 60).
Zivotofsky contends that §214(d) fits squarely within
this tradition. He notes that the State Department’s
designated representative stated in her deposition for this
litigation that the “place of birth” entry is included only
as “an element of identification.” App. 76 (Deposition of
Catherine Barry, Deputy Assistant Secretary of State for
Overseas Citizens Services); see Brief for Petitioner 10.
Moreover, Zivotofsky argues, the “place of birth” entry
cannot be taken as a means for recognizing foreign sover-
eigns, because the State Department authorizes recording
unrecognized territories—such as the Gaza Strip and the
West Bank—as places of birth. Brief for Petitioner 43
(citing 7 Foreign Affairs Manual §1383.5–5, App. 109–
110).
Further, Zivotofsky claims that even if §214(d) does
implicate the recognition power, that is not a power the
Cite as: 566 U. S. ____ (2012) 11
Opinion of the Court
Constitution commits exclusively to the Executive. Zivo-
tofsky argues that the Secretary is overreading the authority
granted to the President in the “receive Ambassadors”
clause. He observes that in the Federalist Papers, Alexander
Hamilton described the power conferred by this clause as
“more a matter of dignity than of authority,” and called it “a
circumstance, which will be without consequence in the
administration of the government.” The Federalist No. 69,
p. 468 (J. Cooke ed. 1961); see Brief for Petitioner 37. Zivo-
tofsky also points to other clauses in the Constitution, such
as Congress’s power to declare war, that suggest some con-
gressional role in recognition. Reply Brief for Petitioner 23
(citing U. S. Const., Art. I, §8, cl. 11). He cites, for example,
an 1836 message from President Jackson to Congress, ac-
knowledging that it is unclear who holds the authority to
recognize because it is a power “no where expressly dele-
gated” in the Constitution, and one that is “necessarily
involved in some of the great powers given to Congress.”
Message from the President of the United States Upon the
Subject of the Political, Military, and Civil Condition of
Texas, H. R. Doc. No. 35, 24th Cong., 2d Sess., 2; see Reply
Brief for Petitioner 11–12.
Zivotofsky argues that language from this Court’s prece-
dents suggesting the recognition power belongs exclusively
to the President is inapplicable to his claim, because that
language appeared in cases where the Court was asked to
alter recognition policy developed by the Executive in the
absence of congressional opposition. See Brief for Petitioner
44–46; Reply Brief for Petitioner 18–19. Finally, Zivotofsky
contends that even if the “receive Ambassadors” clause
confers some exclusive recognition power on the President,
simply allowing a choice as to the “place of birth” entry on a
passport does not significantly intrude on that power.
Recitation of these arguments—which sound in familiar
principles of constitutional interpretation—is enough to
establish that this case does not “turn on standards that defy
12 ZIVOTOFSKY v. CLINTON
Opinion of the Court
judicial application.” Baker, 369 U. S., at 211. Resolution of
Zivotofksy’s claim demands careful examination of the tex-
tual, structural, and historical evidence put forward by the
parties regarding the nature of the statute and of the pass-
port and recognition powers. This is what courts do. The
political question doctrine poses no bar to judicial review of
this case.
III
To say that Zivotofsky’s claim presents issues the Judi-
ciary is competent to resolve is not to say that reaching a
decision in this case is simple. Because the District Court
and the D. C. Circuit believed that review was barred by
the political question doctrine, we are without the benefit
of thorough lower court opinions to guide our analysis of
the merits. Ours is “a court of final review and not first
view.” Adarand Constructors, Inc. v. Mineta, 534 U. S.
103, 110 (2001) (per curiam) (internal quotation marks
omitted). Ordinarily, “we do not decide in the first in-
stance issues not decided below.” National Collegiate
Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999). In
particular, when we reverse on a threshold question, we
typically remand for resolution of any claims the lower
courts’ error prevented them from addressing. See, e.g.,
Bond v. United States, 564 U. S. ___, ___ (2011) (slip op.,
at 1–2) (reversing the Court of Appeals’ determination on
standing and remanding because the “merits of petition-
er’s challenge to the statute’s validity are to be considered,
in the first instance, by the Court of Appeals”). We see no
reason to depart from this approach in this case. Having
determined that this case is justiciable, we leave it to the
lower courts to consider the merits in the first instance.
The judgment of the Court of Appeals for the D. C.
Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Cite as: 566 U. S. ____ (2012) 1
Opinion of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–699
_________________
MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS
AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN
ZIVOTOFSKY, PETITIONER v. HILLARY
RODHAM CLINTON, SECRETARY
OF STATE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 26, 2012]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins
as to Part I, concurring in part and concurring in the
judgment.
As this case illustrates, the proper application of Baker’s
six factors has generated substantial confusion in the
lower courts. I concur in the Court’s conclusion that this
case does not present a political question. I write sepa-
rately, however, because I understand the inquiry re-
quired by the political question doctrine to be more de-
manding than that suggested by the Court.
I
The political question doctrine speaks to an amalgam of
circumstances in which courts properly examine whether
a particular suit is justiciable—that is, whether the dis-
pute is appropriate for resolution by courts. The doctrine
is “essentially a function of the separation of powers,”
Baker v. Carr, 369 U. S. 186, 217 (1962), which recognizes
the limits that Article III imposes upon courts and accords
appropriate respect to the other branches’ exercise of their
own constitutional powers.
In Baker, this Court identified six circumstances in
2 ZIVOTOFSKY v. CLINTON
Opinion of SOTOMAYOR, J.
which an issue might present a political question: (1) “a
textually demonstrable constitutional commitment of the
issue to a coordinate political department”; (2) “a lack of
judicially discoverable and manageable standards for
resolving it”; (3) “the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudi-
cial discretion”; (4) “the impossibility of a court’s undertak-
ing independent resolution without expressing lack of the
respect due coordinate branches of government”; (5) “an
unusual need for unquestioning adherence to a political
decision already made”; or (6) “the potentiality of embar-
rassment from multifarious pronouncements by various
departments on one question.” Id., at 217. Baker estab-
lished that “[u]nless one of these formulations is inextri-
cable from the case at bar, there should be no dismissal for
nonjusticiability.” Ibid. But Baker left unanswered when
the presence of one or more factors warrants dismissal,
as well as the interrelationship of the six factors and the
relative importance of each in determining whether a case
is suitable for adjudication.
In my view, the Baker factors reflect three distinct
justifications for withholding judgment on the merits of a
dispute. When a case would require a court to decide an
issue whose resolution is textually committed to a coordi-
nate political department, as envisioned by Baker’s first
factor, abstention is warranted because the court lacks
authority to resolve that issue. See, e.g., Nixon v. United
States, 506 U. S. 224, 229 (1993) (holding nonjusticiable
the Senate’s impeachment procedures in light of Article I’s
commitment to the Senate of the “ ‘sole Power to try all
Impeachments’ ”); see also Marbury v. Madison, 1 Cranch
137, 165–166 (1803) (“By the constitution of the United
States, the president is invested with certain important
political powers, in the exercise of which he is to use
his own discretion, and is accountable only to his country
in his political character, and to his own conscience”). In
Cite as: 566 U. S. ____ (2012) 3
Opinion of SOTOMAYOR, J.
such cases, the Constitution itself requires that another
branch resolve the question presented.
The second and third Baker factors reflect circum-
stances in which a dispute calls for decisionmaking beyond
courts’ competence. “ ‘The judicial Power’ created by Arti-
cle III, §1, of the Constitution is not whatever judges
choose to do,” but rather the power “to act in the manner
traditional for English and American courts.” Vieth v.
Jubelirer, 541 U. S. 267, 278 (2004) (plurality opinion).
That traditional role involves the application of some
manageable and cognizable standard within the compe-
tence of the Judiciary to ascertain and employ to the facts
of a concrete case. When a court is given no standard by
which to adjudicate a dispute, or cannot resolve a dispute
in the absence of a yet-unmade policy determination
charged to a political branch, resolution of the suit is be-
yond the judicial role envisioned by Article III. See, e.g.,
Gilligan v. Morgan, 413 U. S. 1, 10 (1973) (“[I]t is difficult
to conceive of an area of governmental activity in which
the courts have less competence” than “[t]he complex,
subtle, and professional decisions as to the composition,
training, equipping, and control of a military force”); Vieth,
541 U. S., at 278 (“One of the most obvious limitations
imposed by [Article III] is that judicial action must be
governed by standard . . . ”). This is not to say, of course,
that courts are incapable of interpreting or applying
somewhat ambiguous standards using familiar tools of
statutory or constitutional interpretation. But where an
issue leaves courts truly rudderless, there can be “no
doubt of [the] validity” of a court’s decision to abstain from
judgment. Ibid.The final three Baker factors address circumstances in
which prudence may counsel against a court’s resolution of
an issue presented. Courts should be particularly cautious
before forgoing adjudication of a dispute on the basis that
judicial intervention risks “embarrassment from multifar-
4 ZIVOTOFSKY v. CLINTON
Opinion of SOTOMAYOR, J.
ious pronouncements by various departments on one
question,” would express a “lack of the respect due coordi-
nate branches of government,” or because there exists an
“unusual need for unquestioning adherence to a political
decision already made.” 369 U. S., at 217. We have re-
peatedly rejected the view that these thresholds are met
whenever a court is called upon to resolve the constitu-
tionality or propriety of the act of another branch of Gov-
ernment. See, e.g., United States v. Munoz-Flores, 495
U. S. 385, 390–391 (1990); Powell v. McCormack, 395 U. S.
486, 548, 549 (1969). A court may not refuse to adjudicate
a dispute merely because a decision “may have significant
political overtones” or affect “the conduct of this Nation’s
foreign relations,” Japan Whaling Assn. v. American
Cetacean Soc., 478 U. S. 221, 230 (1986). Nor may courts
decline to resolve a controversy within their traditional
competence and proper jurisdiction simply because the
question is difficult, the consequences weighty, or the
potential real for conflict with the policy preferences of
the political branches. The exercise of such authority is
among the “gravest and most delicate dut[ies] that this
Court is called on to perform,” Blodgett v. Holden, 275
U. S. 142, 148 (1927) (Holmes, J., concurring), but it is
the role assigned to courts by the Constitution. “Questions
may occur which we would gladly avoid; but we cannot
avoid them. All we can do is, to exercise our best judg-
ment, and conscientiously to perform our duty.” Cohens v.
Virginia, 6 Wheat. 264, 404 (1821).
Rare occasions implicating Baker’s final factors, how-
ever, may present an “ ‘unusual case’ ” unfit for judicial
disposition. 369 U. S., at 218 (quoting the argument of
Daniel Webster in Luther v. Borden, 7 How. 1, 29 (1849)).
Because of the respect due to a coequal and independent
department, for instance, courts properly resist calls to
question the good faith with which another branch attests
to the authenticity of its internal acts. See, e.g., Field v.
Cite as: 566 U. S. ____ (2012) 5
Opinion of SOTOMAYOR, J.
Clark, 143 U. S. 649, 672–673 (1892) (deeming “forbidden
by the respect due to a coordinate branch of the govern-
ment” “[j]udicial action” requiring a belief in a “deliberate
conspiracy” by the Senate and House of Representatives
“to defeat an expression of the popular will”); see also
Munoz-Flores, 495 U. S., at 409–410 (SCALIA, J., concur-
ring in judgment) (“Mutual regard between the coordinate
branches, and the interest of certainty, both demand that
official representations regarding . . . matters of internal
process be accepted at face value”). Likewise, we have
long acknowledged that courts are particularly ill suited
to intervening in exigent disputes necessitating unusual
need for “attributing finality to the action of the political
departments,” Coleman v. Miller, 307 U. S. 433, 454
(1939), or creating acute “risk [of] embarrassment of our
government abroad, or grave disturbance at home,” Baker,
369 U. S., at 226. See, e.g., Luther, 7 How., at 43 (“After
the President has acted and called out the militia, is a
Circuit Court of the United States authorized to inquire
whether his decision was right? . . . If the judicial power
extends so far, the guarantee contained in the Constitu-
tion of the United States is a guarantee of anarchy, and
not of order”).1 Finally, it may be appropriate for courts to
stay their hand in cases implicating delicate questions
concerning the distribution of political authority between
coordinate branches until a dispute is ripe, intractable,
and incapable of resolution by the political process. See
——————
1 See also Martin v. Mott, 12 Wheat. 19, 29–30 (1827) (Story, J.) (de-
clining to review the President’s determination that an “exigency has
arisen,” necessitating the “call [of] the militia into actual service,”
recognizing need for “[a] prompt and unhesitating obedience to orders is
indispensable”); Ware v. Hylton, 3 Dall. 199, 260 (1796) (Iredell, J.,
concurring) (to declare treaty with Great Britain void would turn on
“considerations of policy, considerations of extreme magnitude, [which
are] certainly entirely incompetent to the examination and decision of a
Court of Justice”).
6 ZIVOTOFSKY v. CLINTON
Opinion of SOTOMAYOR, J.
Goldwater v. Carter, 444 U. S. 996, 997 (1979) (Powell, J.,
concurring in judgment). Abstention merely reflects that
judicial intervention in such cases is “legitimate only in
the last resort,” Chicago & Grand Trunk R. Co. v. Well-
man, 143 U. S. 339, 345 (1892), and is disfavored relative
to the prospect of accommodation between the political
branches.
When such unusual cases arise, abstention accommo-
dates considerations inherent in the separation of powers
and the limitations envisioned by Article III, which con-
ferred authority to federal courts against a common-law
backdrop that recognized the propriety of abstention in
exceptional cases. New Orleans Public Service, Inc. v.
Council of City of New Orleans, 491 U. S. 350, 359 (1989);
see generally Shapiro, Jurisdiction and Discretion, 60
N. Y. U. L. Rev. 543 (1985) (hereinafter Shapiro). The
political questions envisioned by Baker’s final categories
find common ground, therefore, with many longstanding
doctrines under which considerations of justiciability or
comity lead courts to abstain from deciding questions
whose initial resolution is better suited to another time,
see, e.g., National Park Hospitality Assn. v. Department of
Interior, 538 U. S. 803, 808 (2003) (ripeness); United
States Parole Comm’n v. Geraghty, 445 U. S. 388, 397
(1980) (mootness); or another forum, see, e.g., Gulf Oil
Corp. v. Gilbert, 330 U. S. 501, 507 (1947) (forum non
conveniens); Railroad Comm’n of Tex. v. Pullman Co., 312
U. S. 496, 498–500 (1941); Louisiana Power & Light Co. v.
City of Thibodaux, 360 U. S. 25, 25–30 (1959); Burford v.
Sun Oil Co., 319 U. S. 315, 333–334 (1943) (abstention in
favor of a state forum); United States v. Western Pa-
cific R. Co., 352 U. S. 59, 63–64 (1956) (primary jurisdic-
tion doctrine). See also DaimlerChrysler Corp. v. Cuno, 547
U. S. 332, 352 (2006) (“The doctrines of mootness, ripe-
ness, and political question all originate in Article III’s
‘case’ or ‘controversy’ language”); Shapiro 550–557, 580–
Cite as: 566 U. S. ____ (2012) 7
Opinion of SOTOMAYOR, J.
587 (describing practices of judicial abstention sounding in
justiciability, comity, forum non conveniens, and separa-
tion of powers).
To be sure, it will be the rare case in which Baker’s final
factors alone render a case nonjusticiable.2 But our long
historical tradition recognizes that such exceptional cases
arise, and due regard for the separation of powers and the
judicial role envisioned by Article III confirms that absten-
tion may be an appropriate response.
II
The court below held that this case presented a political
question because it thought petitioner’s suit asked the
court to decide an issue “textually committed” to a coordi-
nate branch—namely, “to review a policy of the State
Department implementing the President’s decision” to
keep the United States out of the debate over the status of
Jersualem. 571 F. 3d 1227, 1231–1232 (CADC 2009).
Largely for the reasons set out by the Court, I agree that
the Court of Appeals misapprehended the nature of its
task. In two respects, however, my understanding of the
political question doctrine might require a court to engage
in further analysis beyond that relied upon by the Court.
First, the Court appropriately recognizes that petition-
er’s claim to a statutory right is “relevant” to the justicia-
bility inquiry required in this case. Ante, at 6. In order to
evaluate whether a case presents a political question, a
court must first identify with precision the issue it is being
——————
2 Often when such factors are implicated in a case presenting a politi-
cal question, other factors identified in Baker will likewise be apparent.
See, e.g., Nixon v. United States, 506 U. S. 224, 236 (1993) (“[i]n addi-
tion to the textual commitment argument,” finding persuasive that
“opening the door of judicial review” of impeachment procedures would
“ ‘expose the political life of the country to months, or perhaps years, of
chaos’ ”); Baker, 369 U. S., at 222 (explaining that the Court in Luther
v. Borden, 7 How. 1 (1849), found present features associated with each
of the three rationales underlying Baker’s factors).
8 ZIVOTOFSKY v. CLINTON
Opinion of SOTOMAYOR, J.
asked to decide. Here, petitioner’s suit claims that a
federal statute provides him with a right to have “Israel”
listed as his place of birth on his passport and other re-
lated documents. App. 15–18. To decide that question, a
court must determine whether the statute is constitu-
tional, and therefore mandates the Secretary of State to
issue petitioner’s desired passport, or unconstitutional, in
which case his suit is at an end. Resolution of that issue is
not one “textually committed” to another branch; to the
contrary, it is committed to this one. In no fashion does the
question require a court to review the wisdom of the Pres-
ident’s policy toward Jerusalem or any other decision
committed to the discretion of a coordinate department.
For that reason, I agree that the decision below should be
reversed.
That is not to say, however, that no statute could give
rise to a political question. It is not impossible to imagine
a case involving the application or even the constitutional-
ity of an enactment that would present a nonjusticiable
issue. Indeed, this Court refused to determine whether an
Ohio state constitutional provision offended the Repub-
lican Guarantee Clause, Art. IV, §4, holding that “the
question of whether that guarantee of the Constitution
has been disregarded presents no justiciable controversy.”
Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 569 (1916).
A similar result would follow if Congress passed a statute,
for instance, purporting to award financial relief to those
improperly “tried” of impeachment offenses. To adjudicate
claims under such a statute would require a court to re-
solve the very same issue we found nonjusticiable in
Nixon. Such examples are atypical, but they suffice to show
that the foreclosure altogether of political question analy-
sis in statutory cases is unwarranted.
Second, the Court suggests that this case does not im-
plicate the political question doctrine’s concern with issues
exhibiting “ ‘a lack of judicially discoverable and managea-
Cite as: 566 U. S. ____ (2012) 9
Opinion of SOTOMAYOR, J.
ble standards,’ ” ante, at 8, because the parties’ arguments
rely on textual, structural, and historical evidence of the
kind that courts routinely consider. But that was equally
true in Nixon, a case in which we found that “the use of
the word ‘try’ in the first sentence of the Impeachment
Trial Clause lacks sufficient precision to afford any judi-
cially manageable standard of review of the Senate’s
actions.” 506 U. S., at 230. We reached that conclusion
even though the parties’ briefs focused upon the text of the
Impeachment Trial Clause, “the Constitution’s drafting
history,” “contemporaneous commentary,” “the unbroken
practice of the Senate for 150 years,” contemporary dic-
tionary meanings, “Hamilton’s Federalist essays,” and the
practice in the House of Lords prior to ratification. Such
evidence was no more or less unfamiliar to courts than
that on which the parties rely here.
In my view, it is not whether the evidence upon which
litigants rely is common to judicial consideration that
determines whether a case lacks judicially discoverable
and manageable standards. Rather, it is whether that
evidence in fact provides a court a basis to adjudicate
meaningfully the issue with which it is presented. The
answer will almost always be yes, but if the parties’ tex-
tual, structural, and historical evidence is inapposite or
wholly unilluminating, rendering judicial decision no more
than guesswork, a case relying on the ordinary kinds of
arguments offered to courts might well still present justi-
ciability concerns.
In this case, however, the Court of Appeals majority
found a political question solely on the basis that this case
required resolution of an issue “textually committed” to
the Executive Branch. Because there was no such textual
commitment, I respectfully concur in the Court’s decision
to reverse the Court of Appeals.
Cite as: 566 U. S. ____ (2012) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–699
_________________
MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS
AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN
ZIVOTOFSKY, PETITIONER v. HILLARY
RODHAM CLINTON, SECRETARY
OF STATE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 26, 2012]
JUSTICE ALITO, concurring in the judgment.
This case presents a narrow question, namely, whether
the statutory provision at issue infringes the power of the
President to regulate the contents of a passport. This case
does not require the Judiciary to decide whether the power
to recognize foreign governments and the extent of their
territory is conferred exclusively on the President or is
shared with Congress. Petitioner does not claim that the
statutory provision in question represents an attempt by
Congress to dictate United States policy regarding the
status of Jerusalem. Instead, petitioner contends in effect
that Congress has the power to mandate that an American
citizen born abroad be given the option of including in his
passport and Consular Report of Birth Abroad (CRBA)
what amounts to a statement of personal belief on the
status of Jerusalem.
Powers conferred on Congress by the Constitution cer-
tainly give Congress a measure of authority to prescribe
the contents of passports and CRBAs. The Constitution
gives Congress the power to regulate foreign commerce,
Art. I, §8, cl. 3, and this power includes the power to regu-
late the entry of persons into this country, see Henderson
2 ZIVOTOFSKY v. CLINTON
ALITO, J., concurring in judgment
v. Mayor of New York, 92 U. S. 259, 270–271 (1876). The
Constitution also gives Congress the power to make a
“uniform Rule of Naturalization,” Art. I, §8, cl. 4, and
pursuant to this power, Congress has enacted laws con-
cerning the citizenship of children born abroad to parents
who are citizens of this country, see United States v. Wong
Kim Ark, 169 U. S. 649, 688 (1898). These powers allow
Congress to mandate that identifying information be in-
cluded in passports and CRBAs.
The President also has a measure of authority concern-
ing the contents of passports and CRBAs. The President
has broad authority in the field of foreign affairs, see, e.g.,
American Ins. Assn. v. Garamendi, 539 U. S. 396, 414
(2003), and, historically, that authority has included the
power to issue passports, even in the absence of any for-
mal congressional conferral of authority to do so. See
Haig v. Agee, 453 U. S. 280, 293 (1981) (explaining that
“[p]rior to 1856, when there was no statute on the subject,
the common perception was that the issuance of a pass-
port was committed to the sole discretion of the Executive
and that the Executive would exercise this power in the
interests of the national security and foreign policy of the
United States”). We have described a passport as “a letter
of introduction in which the issuing sovereign vouches for
the bearer and requests other sovereigns to aid the bear-
er.” Id., at 292. This is apparent from the first page of
petitioner’s passport, which reads as follows:
“The Secretary of State of the United States of Amer-
ica hereby requests all whom it may concern to permit
the citizen / national of the United States named here-
in to pass without delay or hindrance and in case of
need to give all lawful aid and protection.” App. 19.
Similarly, a CRBA is a certification made by a consular of-
ficial that the bearer acquired United States citizenship
at birth. See id., at 20.
Cite as: 566 U. S. ____ (2012) 3
ALITO, J., concurring in judgment
Under our case law, determining the constitutionality of
an Act of Congress may present a political question, but I
do not think that the narrow question presented here falls
within that category. Delineating the precise dividing line
between the powers of Congress and the President with
respect to the contents of a passport is not an easy matter,
but I agree with the Court that it does not constitute a
political question that the Judiciary is unable to decide.
Cite as: 566 U. S. ____ (2012) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–699
_________________
MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS
AND GUARDIANS, ARI Z. AND NAOMI SIEGMAN
ZIVOTOFSKY, PETITIONER v. HILLARY
RODHAM CLINTON, SECRETARY
OF STATE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 26, 2012]
JUSTICE BREYER, dissenting.
I join Part I of JUSTICE SOTOMAYOR’s opinion. As she
points out, Baker v. Carr, 369 U. S. 186 (1962), set forth
several categories of legal questions that the Court had
previously held to be “political questions” inappropriate for
judicial determination. Those categories include (1) in-
stances in which the Constitution clearly commits deci-
sionmaking power to another branch of Government, and
(2) issues lacking judicially manageable standards for
resolution. Id., at 217. They also include (3) issues that
courts cannot decide without making “an initial policy
determination of a kind clearly for nonjudicial discretion,”
(4) issues that a court cannot independently decide “with-
out expressing lack of the respect due coordinate branches
of government,” (5) cases in which there is “an unusual
need for unquestioning adherence to a political decision
already made,” and (6) cases in which there is a potential
for “embarrassment from multifarious pronouncements by
various departments on one question.” Ibid.As JUSTICE SOTOMAYOR also points out, these categories
(and in my view particularly the last four) embody “cir-
cumstances in which prudence may counsel against a
2 ZIVOTOFSKY v. CLINTON
BREYER, J., dissenting
court’s resolution of an issue presented.” Ante, at 3 (opin-
ion concurring in part and concurring in judgment); see
Nixon v. United States, 506 U. S. 224, 253 (1993) (Souter,
J., concurring in judgment) (the political-question doctrine
“deriv[es] in large part from prudential concerns about the
respect we owe the political departments”); Goldwater v.
Carter, 444 U. S. 996, 1000 (1979) (Powell, J., concurring
in judgment) (“[T]he political-question doctrine rests in
part on prudential concerns calling for mutual respect
among the three branches of Government”); see also Jaffe,
Standing to Secure Judicial Review: Public Actions, 74
Harv. L. Rev. 1265, 1304 (1961) (prudence counsels hesita-
tion where a legal issue is “felt to be so closely related to
a complex of decisions not within the court’s jurisdiction
that its resolution by the court would either be poor in
itself or would jeopardize sound decisions in the larger
complex”).
JUSTICE SOTOMAYOR adds that the circumstances in
which these prudential considerations lead the Court not
to decide a case otherwise properly before it are rare.
Ante, at 7. I agree. But in my view we nonetheless have
before us such a case. Four sets of prudential considera-
tions, taken together, lead me to that conclusion.
First, the issue before us arises in the field of foreign
affairs. (Indeed, the statutory provision before us is a
subsection of a section that concerns the relation between
Jerusalem and the State of Israel. See §214 of the Foreign
Relations Authorization Act, Fiscal Year 2003, 116 Stat.
1365 (“United States Policy with Respect to Jerusalem as
the Capital of Israel”).) The Constitution primarily dele-
gates the foreign affairs powers “to the political depart-
ments of the government, Executive and Legislative,” not
to the Judiciary. Chicago & Southern Air Lines, Inc. v.
Waterman S. S. Corp., 333 U. S. 103, 111 (1948); see also
Marbury v. Madison, 1 Cranch 137, 166 (1803) (noting
discretionary foreign affairs functions of Secretary of State
Cite as: 566 U. S. ____ (2012) 3
BREYER, J., dissenting
as beyond the power of the Judiciary to review). And that
fact is not surprising. Decisionmaking in this area typical-
ly is highly political. It is “delicate” and “complex.” Chi-
cago & Southern Air Lines, 333 U. S., at 111. 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. Ibid. It frequently
is highly dependent upon what Justice Jackson called
“prophecy.” Ibid. And the creation of wise foreign policy
typically lies well beyond the experience or professional
capacity of a judge. Ibid. 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. See United States v. Pink, 315 U. S. 203, 242
(1942) (Frankfurter, J., concurring); see also R. Fallon,
J. Manning, D. Meltzer, & D. Shapiro, Hart and
Wechsler’s The Federal Courts and the Federal System
240 (6th ed. 2009).
The result is a judicial hesitancy to make decisions that
have significant foreign policy implications, as reflected in
the fact that many of the cases in which the Court has in-
voked the political-question doctrine have arisen in this
area, e.g., cases in which the validity of a treaty depended
upon the partner state’s constitutional authority, Doe v.
Braden, 16 How. 635, 657 (1854), or upon its continuing
existence, Terlinden v. Ames, 184 U. S. 270, 285 (1902);
cases concerning the existence of foreign states, govern-
ments, belligerents, and insurgents, Oetjen v. Central
Leather Co., 246 U. S. 297, 302 (1918); United States v.
Klintock, 5 Wheat. 144, 149 (1820); United States v. Pal-
mer, 3 Wheat. 610, 634–635 (1818); and cases concerning
the territorial boundaries of foreign states, Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839); Foster v. Neilson,
2 Pet. 253, 307 (1829). See Baker, supra, at 186, 211–213
(citing these cases as the Court’s principal foreign-
relations political-question cases); see also Fallon, supra,
4 ZIVOTOFSKY v. CLINTON
BREYER, J., dissenting
at 243–247.
Second, if the courts must answer the constitutional
question before us, they may well have to evaluate the
foreign policy implications of foreign policy decisions. The
constitutional question focuses upon a statutory provision,
§214(d), that says: The Secretary of State, upon the re-
quest of a U. S. citizen born in Jerusalem (or upon the
request of the citizen’s legal guardian), shall “record” in
the citizen’s passport or consular birth report “the place
of birth as Israel.” 116 Stat. 1366. And the question is
whether this statute unconstitutionally seeks to limit the
President’s inherent constitutional authority to make cer-
tain kinds of foreign policy decisions. See American Ins.
Assn. v. Garamendi, 539 U. S. 396, 414–415 (2003)
(citing cases); Clinton v. City of New York, 524 U. S. 417,
445 (1998) (“[T]his Court has recognized that in the for-
eign affairs arena, the President has ‘a degree of discretion
and freedom from statutory restriction which would not be
admissible were domestic affairs alone involved’ ” (quoting
United States v. Curtiss-Wright Export Corp., 299 U. S.
304, 320 (1936))); cf. Youngstown Sheet & Tube Co.
v. Sawyer, 343 U. S. 579, 637–638 (1952) (Jackson, J.,
concurring).
The Secretary of State argues that the President’s con-
stitutional authority to determine foreign policy includes
the power to recognize foreign governments, that this
Court has long recognized that the latter power belongs
to the President exclusively, that the power includes the
power to determine claims over disputed territory as well
as the policy governing recognition decisions, and that the
statute unconstitutionally limits the President’s exclusive
authority to exercise these powers. See U. S. Const., Art.
II, §2, cl. 2; Art. II, §3; e.g., Kennett v. Chambers, 14 How.
38, 50–51 (1852) (recognition); Williams, supra, at 420(disputed territory); Pink, supra, at 229 (recognition poli-
cy); see also Haig v. Agee, 453 U. S. 280, 293 (1981) (execu-
Cite as: 566 U. S. ____ (2012) 5
BREYER, J., dissenting
tive passport authority).
Zivotofsky, supported by several Members of Congress,
points out that the Constitution also grants Congress
powers related to foreign affairs, such as the powers to
declare war, to regulate foreign commerce, and to regulate
naturalization. See Art. I, §8, cls. 3, 4, 11; see also Ameri-
can Ins. Assn., supra, at 414. They add that Congress may
share some of the recognition power and its attendant
power of determining claims over disputed territory. E.g.,
Palmer, supra, at 634 (recognition); Jones v. United States,
137 U. S. 202, 212 (1890) (disputed territory). And they
add that Congress may enact laws concerning travel into
this country and concerning the citizenship of children
born abroad to U. S. citizens. See Henderson v. Mayor of
New York, 92 U. S. 259, 270–271 (1876) (travel); Fong Yue
Ting v. United States, 149 U. S. 698, 714 (1893) (immigra-
tion); United States v. Wong Kim Ark, 169 U. S. 649, 688
(1898) (citizenship). They argue that these powers include
the power to specify the content of a passport (or consular
birth report). And when such a specification takes the
form of statutory law, they say, the Constitution requires
the President (through the Secretary of State) to execute
that statute. See Art. II, §3.
Were the statutory provision undisputedly concerned
only with purely administrative matters (or were its en-
forcement undisputedly to involve only major foreign
policy matters), judicial efforts to answer the constitu-
tional question might not involve judges in trying to an-
swer 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 stat-
ute, in practice, reaches beyond the purely administrative,
determining not only whether but also the extent to
6 ZIVOTOFSKY v. CLINTON
BREYER, J., dissenting
which enforcement will interfere with the President’s
ability to make significant recognition-related foreign
policy decisions.
Certainly the parties argue as if that were so. Zivo-
tofsky, for example, argues that replacing “Jerusalem” on
his passport with “Israel” will have no serious foreign
policy significance. See Brief for Petitioner 43, 46–52;
Reply Brief for Petitioner 25–26. And in support he points
to (1) a State Department official’s statement that birth-
place designation serves primarily as “an element of iden-
tification,” while omitting mention of recognition; (2) the
fact that the State Department has recorded births in
unrecognized territories in the region, such as the Gaza
Strip and the West Bank, apparently without adverse
effect; and (3) the fact that sometimes Jerusalem does
(because of what the Government calls “clerical errors”)
carry with it the name of “Israel” on certain official docu-
ments, again apparently without seriously adverse effect.
See Brief for Petitioner 7–10, 15, 43, 50; App. 50, 58–60,
75–76. Moreover, Zivotofsky says, it is unfair to allow the
100,000 or so Americans born in cities that the United
States recognizes as under Israeli sovereignty, such as Tel
Aviv or Haifa, the right to a record that mentions Israel,
while denying that privilege to the 50,000 or so Americans
born in Jerusalem. See Brief for Petitioner 18–20, 48–49;
App. 48.
At the same time, the Secretary argues that listing
Israel on the passports (and consular birth reports) of
Americans born in Jerusalem will have significantly ad-
verse foreign policy effects. See Brief for Respondent 8,
37–41. She says that doing so would represent “ ‘an offi-
cial decision by the United States to begin to treat Jerusa-
lem as a city located within Israel,’ ” id., at 38–39, that it
“would be interpreted as an official act of recognizing
Jerusalem as being under Israeli sovereignty,” App. 56,
and that our “national security interests” consequently
Cite as: 566 U. S. ____ (2012) 7
BREYER, J., dissenting
“would be significantly harmed,” id., at 49. Such an ac-
tion, she says, “ ‘would signal, symbolically or concretely,
that’ ” the United States “ ‘recognizes that Jerusalem is a
city that is located within the sovereign territory of Is-
rael,’” and doing so, “‘would critically compromise the ability
of the United States to work with Israelis, Palestinians
and others in the region to further the peace process.’ ”
Brief for Respondent 2; App. 52–53. She adds that the
very enactment of this statutory provision in 2002 pro-
duced headlines in the Middle East stating the “the U. S.
now recognizes Jerusalem as Israel’s capital.” Id., at 231;
Brief for Respondent 10; see also App. 53–55, 227–231.
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?
Third, the countervailing interests in obtaining judicial
resolution of the constitutional determination are not
particularly strong ones. Zivotofsky does not assert the
kind of interest, e.g., an interest in property or bodily
integrity, which courts have traditionally sought to pro-
tect. See, e.g., Ingraham v. Wright, 430 U. S. 651, 673–
674 (1977) (enduring commitment to legal protection of
bodily integrity). Nor, importantly, does he assert an
interest in vindicating a basic right of the kind that the
Constitution grants to individuals and that courts tradi-
tionally have protected from invasion by the other branches
of Government. And I emphasize this fact because the
need for judicial action in such cases can trump the foreign
policy concerns that I have mentioned. As Professor Jaffe
pointed out many years ago, “Our courts would not refuse
to entertain habeas corpus to test the constitutionality of
the imprisonment of an alleged Chinese agent even if it
8 ZIVOTOFSKY v. CLINTON
BREYER, J., dissenting
were clear that his imprisonment was closely bound up
with our relations to the Chinese government.” 74 Harv.
L. Rev., at 1304; see also T. Franck, Political Questions/
Judicial Answers 63–64 (1992); cf. Boumediene v. Bush,
553 U. S. 723, 755 (2008).
The interest that Zivotofsky asserts, however, is akin to
an ideological interest. See Brief for Petitioner 54 (citizen
born in Jerusalem, unlike citizen born in Tel Aviv or
Haifa, does not have the “option” to “specify or suppress the
name of a country that accords with his or her ideology”);
see also id., at 19 (State Department policy bars citizens
born in Jerusalem “from identifying their birthplace in a
manner that conforms with their convictions”). And inso-
far as an individual suffers an injury that is purely ideo-
logical, courts have often refused to consider the matter,
leaving the injured party to look to the political branches
for protection. E.g., Diamond v. Charles, 476 U. S. 54, 66–
67 (1986); Sierra Club v. Morton, 405 U. S. 727, 739–740
(1972). This is not to say that Zivotofsky’s claim is unim-
portant or that the injury is not serious or even that it is
purely ideological. It is to point out that those suffering
somewhat similar harms have sometimes had to look to
the political branches for resolution of relevant legal is-
sues. Cf. United States v. Richardson, 418 U. S. 166, 179
(1974); Laird v. Tatum, 408 U. S. 1, 15 (1972).
Fourth, insofar as the controversy reflects different
foreign policy views among the political branches of Gov-
ernment, those branches have nonjudicial methods of
working out their differences. Cf. Goldwater, 444 U. S., at
1002, 1004 (Rehnquist, J., joined by Burger, C. J., and
Stewart and Stevens, JJ., concurring in judgment) (finding
in similar fact strong reason for Judiciary not to decide
treaty power question). The Executive and Legislative
Branches frequently work out disagreements through
ongoing contacts and relationships, involving, for example,
budget authorizations, confirmation of personnel, commit-
Cite as: 566 U. S. ____ (2012) 9
BREYER, J., dissenting
tee hearings, and a host of more informal contacts, which,
taken together, ensure that, in practice, Members of Con-
gress as well as the President play an important role in
the shaping of foreign policy. Indeed, both the Legislative
Branch and the Executive Branch typically understand
the need to work each with the other in order to create
effective foreign policy. In that understanding, those
related contacts, and the continuous foreign policy-related
relationship lies the possibility of working out the kind of
disagreement we see before us. Moreover, if application of
the political-question “doctrine ultimately turns, as
Learned Hand put it, on ‘how importunately the occasion
demands an answer,’ ” Nixon, 506 U. S., at 253 (Souter, J.,
concurring in judgment) (quoting L. Hand, The Bill of
Rights 15 (1958)), the ability of the political branches to
work out their differences minimizes the need for judicial
intervention here.
The upshot is that this case is unusual both in its mini-
mal need for judicial intervention and in its more serious
risk that intervention will bring about “embarrassment,”
show lack of “respect” for the other branches, and poten-
tially disrupt sound foreign policy decisionmaking. For
these prudential reasons, I would hold that the political-
question doctrine bars further judicial consideration of
this case. And I would affirm the Court of Appeals’ simi-
lar conclusion.
With respect, I dissent.