The Return of Classical Political Question Doctrine in Zivotofsky Ex Rel. Zivotofsky V. Clinton

By Szurkowski, Carol | Harvard Journal of Law & Public Policy, Winter 2014 | Go to article overview

The Return of Classical Political Question Doctrine in Zivotofsky Ex Rel. Zivotofsky V. Clinton


Szurkowski, Carol, Harvard Journal of Law & Public Policy


During his Supreme Court confirmation hearings, Chief Justice Roberts famously said, "I will remember that it's my job to call balls and strikes, and not to pitch or bat." (1) But he went on to draw another comparison between judges and umpires that is less well-remembered: "The role of an umpire and a judge is critical. They make sure everybody plays by the rules...." (2) In making this remark, Chief Justice Roberts alluded to his belief that the judiciary has not only the ability to interpret the law, but the obligation to resolve disputes; it has a "duty ... to say what the law is," (3) as Chief Justice John Marshall so eloquently stated.

In 2012, the Court reaffirmed its commitment to this obligation in Zivotofsky ex rel. Zivotofsky v. Clinton, (4) in which the Court rejected the argument that whether an American citizen born in Jerusalem can enforce his statutory right to have "Israel" listed as his birthplace on his passport is a nonjusticiable political question. (5) A judge will dismiss a case under the political question doctrine when he believes its resolution properly belongs to the other, political branches of the government. In its "classical" form, the political question doctrine was invoked to dismiss cases only when the text and structure of the Constitution itself demanded it. Prudential considerations, however, gradually became intermingled with textual ones, and courts began to dismiss cases for a combination of textual and prudential reasons. Then, in the 1962 case Baker v. Carr, (6) the Supreme Court laid out a six-factor test for identifying cases that present nonjusticiable political questions:

   Prominent on the surface of any case held to involve a political
   question is found a textually demonstrable constitutional
   commitment of the issue to a coordinate political department; or a
   lack of judicially discoverable and manageable standards for
   resolving it; or the impossibility of deciding without an initial
   policy determination of a kind clearly for nonjudicial discretion;
   or the impossibility of a court's undertaking independent
   resolution without expressing lack of the respect due coordinate
   branches of government; or an unusual need for unquestioning
   adherence to a political decision already made; or the potentiality
   of embarrassment from multifarious pronouncements by various
   departments on one question. (7)

This test became the touchstone for federal courts' political question analysis and accelerated the lower courts' trend toward the prudential political question doctrine by legitimating both textual and prudential concerns as independent bases for dismissal. But since Baker, the Supreme Court has retreated from the prudential political question doctrine, while lower federal courts, particularly in cases implicating foreign affairs powers, have increased its use. The Court seized the opportunity presented by Zivotofsky to reassert the classical, pre-Baker interpretation of the political question doctrine, implicitly but conspicuously disavowing the prudential theory even in foreign affairs cases. Zivotofsky thus displaces Baker's six-factor test and substitutes classical political question analysis in its place.

I. THE SUPREME COURT'S DECISION IN ZIVOTOFSKY EX REL. ZIVOTOFSKY V. CLINTON

In 2002, Congress passed the Foreign Relations Authorization Act for the Fiscal Year 2003, (8) which contains a number of directives aimed at solidifying the United States' recognition of Jerusalem as the capital of Israel. These include a requirement that the Secretary of State list Israel as the place of birth for any person born in the city of Jerusalem who so requests. (9)

A few months after the statute was enacted, Menachem Binyamin Zivotofsky was born in Jerusalem to two American parents, and his mother filed an application on his behalf to obtain a United States passport and Consular Report of Birth. (10) On the application, she listed his place of birth as "Jerusalem, Israel.

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