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Zivotofsky v. Clinton

Summarized by: 

Date Filed: November 7, 2011
Case #: 10-699
571 F.3d 1227 (D.C. Cir. 2009)
Full Text Opinion: http://docs.justia.com/cases/federal/appellate-courts/cadc/07-5347/07-5347-1252376-2011-02-28.pdf?1301254910

Constitutional Law: (1) Whether a suit requiring a federal court to order the State Department to adhere to a Congressional statute requiring official government documents identify Jerusalem as the capital of Israel is a justiciable issue, (2) Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns.

Menachem Zivotofsky, a minor child was born in Jerusalem to U.S. citizens. Zivotofsky’s mother applied for a U.S. passport on his behalf, and requested that his birthplace be recorded as “Jerusalem, Israel” pursuant to section 214 of the Foreign Relations Authorization Act, which relates to United States Policy with Respect to Jerusalem as the Capital of Israel. Subsection (d) directs the Secretary of State to identify a United States citizen born in Jerusalem, upon a citizen’s request, as born in “Israel” on a passport or a Consular Report of Birth Abroad. Upon signing the Act, however, the President stated that section 214 was merely advisory because it interfered with the Executive’s sole constitutional authority to recognize foreign governments. The State Department refused the request, and issued a passport that identified only Jerusalem as Menachem’s place of birth. The Zivotofskys, on Menachem’s behalf, filed suit requesting injunctive relief ordering the State Department to comply with subsection (d) of the Act. The District Court dismissed Menachem’s claim for lack of subject matter jurisdiction, holding that the issue was not justiciable because it raised a political question dealing with the Executive’s power. The Court of Appeals for the District of Columbia affirmed. The Court of Appeals denied a rehearing en banc, and the Supreme Court granted certiorari.

Petitioner argues on appeal that the Court of Appeals incorrectly applied the political question doctrine, and that the case actually turns on whether Congress had the authority to enact Section 214 of the Act. Petitioner argues that recognition of foreign sovereigns is merely a ceremonial duty of the Executive and does not extend to recognition of cities within a foreign sovereign’s territory, and a Congressional statute requiring the identification of Jerusalem as the capital of Israel does not interfere with executive authority and is therefore not unconstitutional.