High Court Revives Suit Over Jerusalem Births

(CN) - American judges can determine the fate of a law that lets Jerusalem-born citizens designate "Israel" as their birthplace on passports, the Supreme Court ruled Monday.

Ari and Naomi Siegman Zivotofsky asked federal courts to direct the secretary of state to recognize Israel as the birthplace of their son, Menachem, who turns 10 on Oct. 17.

Under Section 214(d) of the Foreign Relations Authorization Act, citizens born in Jerusalem can have "Israel" on their passports if they wish.

This law attempts to override an instruction in the State Department's Foreign Affairs Manual that says the passports should not memorialize disputed territories states. For persons born in Jerusalem, the State Department says their passport should say Jerusalem, rather than Israel or Jordan.

A federal judge in Washington dismissed the Zivotofsky's lawsuit for lack of subject matter jurisdiction, and the D.C. Circuit affirmed, finding that the complaint raised a "nonjusticiable political question." The judges refused to take a stance where the United States did not.

"That the United States expresses no official view on the thorny issue of whether Jerusalem is part of Israel has been a central and calibrated feature of every president's foreign policy since Harry S. Truman," Judge Thomas Griffith wrote for the panel.

"Because the judiciary has no authority to order the Executive Branch to change the nation's foreign policy in this matter, this case is unquestionably under the political question doctrine."

The doctrine protects the judiciary from political entanglements by allowing courts to decline cases which are deemed best left to the "political" branches of government.

But the Supreme Court vacated that decision Monday. "The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the executive by the Constitution," according to the lead opinion authored by Chief Justice John Roberts.

"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," he added. "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."

"The only real question for the courts is whether the statute is constitutional," the decision states, referring to Section 214(d).

"In this case, determining the constitutionality of §214(d)involves deciding whether the statute impermissibly intrudes upon presidential powers under the Constitution," Roberts added. "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."

"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," the decision states. "This is what courts do. The political question doctrine poses no bar to judicial review of this case."

Justice Samuel Alito authored a brief concurring opinion.

"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," Alito wrote. "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."

Justice Sonia Sotomayor authored an opinion concurring in part and concurring in judgment because she said the political-question doctrine requires a more demanding inquiry.

Justice Stephen Breyer joined in the first part of Sotomayor's opinion, which says "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."

"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 absten­tion may be an appropriate response," Sotomayor wrote.

The opinion's second section says that the courts should address the Zivotofskys' case.

Breyer argued otherwise in a nine-page dissent.

"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," Breyer wrote. "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."

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