ZIVOTOFSKY v. CLINTON

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–699

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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 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.

I A

In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003, 116Stat. 1350. Section 214 of the Act is entitled “United States Policy with Respect to Jerusalem as the Capital of Israel.” Id., at 1365. The first two subsections express Congress’s “commitment” 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 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.” 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 passport. 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” recorded on their passports if they wish. In signing the Foreign 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, Sept. 30, 2002, p. 1698 (2005). He added that if the section 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 reference 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 “congressional 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 declaratory 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 District 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.

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 determined that additional factual development might be helpful in deciding whether this question was justiciable, as the parties disagreed about the foreign policy implications of listing “Israel” alone as a birthplace on the passport. 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 presented a political question, the District Court dismissed the case for lack of subject matter jurisdiction.

The D. C. Circuit affirmed. It reasoned that the Constitution 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 the issue before the court was whether §214(d) “impermissibly 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 constitutional 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 concurred 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 adjudicated. 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 precedents have identified a narrow exception to that rule, known as the “political question” doctrine. See, e.g., Japan 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 textually 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.

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.” 511 F. Supp. 2d, at 103. 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.

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 implement that policy.” 571 F. 3d, at 1232. Because the Department’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 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.” 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 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.” Id., at 941–942.

The Secretary contends that “there is ‘a textually demonstrable 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 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 constitutionality 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 encroached upon the President’s removal power); Bowsher v. Synar, 478 U. S. 714, 734 (1986) (finding a statute unconstitutional 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 constitutionality 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 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 Jefferson 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 Legislature to affect recognition policy were regularly “rejected 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 function of the Executive.” Banco Nacional de Cuba v. Sabbatino, 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 because “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 recognize.” Id., at 39. Therefore, she claims, “listing ‘Israel’ as the place of birth would constitute an official decision by the United States to begin to treat Jerusalem as a city located within Israel. ” Id., at 38–39 (some internal quotation 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 “authority 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 Constitution.’ ” Id., at 45 (quoting L. Henkin, Foreign Affairs and the United States Constitution 63 (2d ed. 1996)). Zivotofsky 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, 11Stat. 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 sovereigns, 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 Constitution commits exclusively to the Executive. Zivotofsky 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. Zivotofsky also points to other clauses in the Constitution, such as Congress’s power to declare war, that suggest some congressional 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, acknowledging that it is unclear who holds the authority to recognize because it is a power “no where expressly delegated” 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 precedents 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 judicial application.” Baker, 369 U. S., at 211. 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.

III

To say that Zivotofsky’s claim presents issues the Judiciary 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 instance 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 petitioner’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.

SUPREME COURT OF THE UNITED STATES

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No. 10–699

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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) instances in which the Constitution clearly commits decisionmaking 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 “without 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 “circumstances in which prudence may counsel against a court’s resolution of an issue presented.” Ante, at 3 (opinion 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 hesitation 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 considerations, 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, 116Stat. 1365 (“United States Policy with Respect to Jerusalem as the Capital of Israel”).) The Constitution primarily delegates the foreign affairs powers “to the political departments 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 as beyond the power of the Judiciary to review). And that fact is not surprising. Decisionmaking in this area typically is highly political. It is “delicate” and “complex.” Chicago & 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 invoked 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, governments, 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. Palmer, 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, 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 request 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.” 116Stat. 1366. And the question is whether this statute unconstitutionally seeks to limit the President’s inherent constitutional authority to make certain kinds of foreign policy decisions. See American Ins. Assn. v. Garamendi, 539 U. S. 396 –415 (2003) (citing cases); Clinton v. City of New York, 524 U. S. 417, 445 (1998) (“[T]his Court has recognized that in the foreign 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 –638 (1952) (Jackson, J., concurring).

The Secretary of State argues that the President’s constitutional 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 policy); see also Haig v. Agee, 453 U. S. 280, 293 (1981) (executive 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 American 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 –271 (1876) (travel); Fong Yue Ting v. United States, 149 U. S. 698, 714 (1893) (immigration); 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 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.

Certainly the parties argue as if that were so. Zivotofsky, 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 birthplace designation serves primarily as “an element of identification,” 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 documents, 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 adverse foreign policy effects. See Brief for Respondent 8, 37–41. 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,’ ” 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 “would be significantly harmed,” id., at 49. Such an action, 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 Israel,’ ” 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 produced 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 protect. See, e.g., Ingraham v. Wright, 430 U. S. 651 –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 traditionally 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 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 insofar as an individual suffers an injury that is purely ideological, 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 –67 (1986); Sierra Club v. Morton, 405 U. S. 727 –740 (1972). This is not to say that Zivotofsky’s claim is unimportant 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 issues. 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 Government, 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, committee hearings, and a host of more informal contacts, which, taken together, ensure that, in practice, Members of Congress 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 minimal 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 potentially 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’ similar conclusion.

With respect, I dissent.

SUPREME COURT OF THE UNITED STATES

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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 certainly 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 regulate the entry of persons into this country, see Henderson v. Mayor of New York, 92 U. S. 259 –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 concerning 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 included in passports and CRBAs.

The President also has a measure of authority concerning 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 formal 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 passport 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 bearer.” 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 America hereby requests all whom it may concern to permit the citizen / national of the United States named herein 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 official that the bearer acquired United States citizenship at birth. See id., at 20.

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.

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 separately, however, because I understand the inquiry required by the political question doctrine to be more demanding 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 dispute 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 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 nonjudicial discretion”; (4) “the impossibility of a court’s undertaking 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 embarrassment from multifarious pronouncements by various departments on one question.” Id., at 217. Baker established that “[u]nless one of these formulations is inextricable 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 coordinate 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 such cases, the Constitution itself requires that another branch resolve the question presented.

The second and third Baker factors reflect circumstances in which a dispute calls for decisionmaking beyond courts’ competence. “ ‘The judicial Power’ created by Article 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 competence 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 beyond 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 multifarious pronouncements by various departments on one question,” would express a “lack of the respect due coordinate 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 repeatedly rejected the view that these thresholds are met whenever a court is called upon to resolve the constitutionality or propriety of the act of another branch of Government. See, e.g., United States v. Munoz-Flores, 495 U. S. 385 –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 judgment, and conscientiously to perform our duty.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821).

Rare occasions implicating Baker’s final factors, however, 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. Clark, 143 U. S. 649 –673 (1892) (deeming “forbidden by the respect due to a coordinate branch of the government” “[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., concurring 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 Constitution 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 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. Wellman, 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 accommodates considerations inherent in the separation of powers and the limitations envisioned by Article III, which conferred 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 –500 (1941); Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25 –30 (1959); Burford v. Sun Oil Co., 319 U. S. 315 –334 (1943) (abstention in favor of a state forum); United States v. Western Pacific R. Co., 352 U. S. 59 –64 (1956) (primary jurisdiction doctrine). See also DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 352 (2006) (“The doctrines of mootness, ripeness, and political question all originate in Article III’s ‘case’ or ‘controversy’ language”); Shapiro 550–557, 580–587 (describing practices of judicial abstention sounding in justiciability, comity, forum non conveniens, and separation 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 abstention 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 coordinate 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 petitioner’s claim to a statutory right is “relevant” to the justiciability 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 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 related documents. App. 15–18. To decide that question, a court must determine whether the statute is constitutional, 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 President’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 constitutionality of an enactment that would present a nonjusticiable issue. Indeed, this Court refused to determine whether an Ohio state constitutional provision offended the Republican 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 resolve 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 analysis in statutory cases is unwarranted.

Second, the Court suggests that this case does not implicate the political question doctrine’s concern with issues exhibiting “ ‘a lack of judicially discoverable and manageable 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 judicially 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 dictionary 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’ textual, 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 justiciability 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.

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1  See also Martin v. Mott, 12 Wheat. 19, 29–30 (1827) (Story, J.) (declining 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”).

2  Often when such factors are implicated in a case presenting a political 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 addition 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).

Print this transcript Transcript: 

ORAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-699, Zivotofsky v. Clinton.

Mr. Lewin.

Mr. Lewin: Mr. -- Mr. Chief Justice, and may it please the Court:

In its recent decisions in Medellin v. Texas and in Hamdan v. Rumsfeld, this Court approved and applied the familiar tripartite scheme that Justice Jackson articulated in the steel seizure case.

When the President takes measures incompatible with the express or implied will of Congress his power is at its lowest ebb.

In that instance, said Justice Jackson, his claim to a power at once so conclusive and preclusive must be scrutinized with caution to preserve the equilibrium established by our constitutional system.

Justice Elena Kagan: Well, Mr. Lewin, what power is Congress exercising here?

Mr. Lewin: Justice Kagan, Congress has exercised its power over passport, the issuance of passports under the immigration, naturalization and foreign commerce powers that Congress has.

It has enacted passport legislation back in 1856, in 1926.

It can control what the contents of a passport ought to be, what its duration may be--

Justice Samuel Alito: What--

Mr. Lewin: --how the application is to be made.

And we say this is an identification--

Justice Samuel Alito: --Do you--

Mr. Lewin: --portion of the passport.

Justice Samuel Alito: --Do you think it's relevant that the title of section 214 is

"United States Policy With Respect to Jerusalem as the Capital of Israel? "

Mr. Lewin: Well, we think -- and we have cited I guess in footnote 2 of our brief a number of recent cases of this Court that have said that you take each statutory provision independently and determine its constitutionality.

True, Congress has a broader view with regard to the policy of Jerusalem being part of Israel than the Executive Branch has had since 1948.

However, that purpose is not determinative of what the constitutionality is of subsection (d).

Moreover--

Justice Ruth Bader Ginsburg: But you say, Mr. Lewin, that -- you are not claiming exclusivity in Congress.

You say foreign relations is a shared power.

So if it is a shared power, why does Congress trump the executive?

Mr. Lewin: --Because -- precisely because under the standard of the steel seizure case and this tripartite scheme, if Congress determines that what the President has done -- and this is a statute which is really very narrow and deals with past conduct by the Executive Branch, as it were.

It does not hobble the President in terms of future foreign policy.

Justice Anthony Kennedy: Well, under your -- under your theory, and this is just a following on Justice Ginsburg's question, I think.

Under your theory what foreign relations determinations are for the President alone to make?

Mr. Lewin: Foreign relations determinations are not left to the President alone.

Justice Anthony Kennedy: Are there any foreign relations determinations that are for the President alone to make under your theory of the case?

Mr. Lewin: Yes, Justice Kennedy.

Justice Anthony Kennedy: And those are?

Mr. Lewin: Those are diplomatic communications.

In other, it's the President who makes--

Justice Anthony Kennedy: In other words, who gets the telegram?

Mr. Lewin: --Well, who issues the communication to the foreign government, who determines; there are certain things that the President alone does because he's the one who implements foreign policy.

Justice Anthony Kennedy: Is there any treatise writer or decision of this Court that supports such a narrow, crabbed interpretation of the President's foreign affairs power?

Mr. Lewin: Well, with all respect, Justice Kennedy, we don't think it's crabbed.

We think that that is exactly what Justice Jackson was referring to, and that's what this Court has said in the Medellin case and -- and in Hamdan as well, that if--

Justice Anthony Kennedy: Of course--

MR. LEWIN -- Congress does not authorize--

--the Jackson tripartite division, this famous division he had, I think assumes the validity of the congressional statute at the first step of inquiry.

And here that's the whole question.

Mr. Lewin: --I don't know whether it's limited to the assumption with regard to the congressional statute.

If Congress says, as it did in this case, we disapprove of the State Department's view that passports should not contain the -- the identification of Israel for people who were born in Jerusalem, that is Congress disapproving of what the State Department and past State Department--

Justice Sonia Sotomayor: Mr.--

Mr. Lewin: --policy has been.

Justice Sonia Sotomayor: --Mr. Lewin, you were cut off earlier when you were saying this reading doesn't hobble the President in the future.

It says anybody born in -- in Jerusalem can have Israel listed, correct?

What happens if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem?

Is the President free to stop listing Israel on the passport?

Mr. Lewin: If--

Justice Sonia Sotomayor: Or does he have to wait for Congress to change the law?

Mr. Lewin: --I think he does have to wait for Congress to change the law.

Justice Sonia Sotomayor: So you are hobbling the President with respect to situations that occur frequently--

Mr. Lewin: Well--

Justice Sonia Sotomayor: --as happened in Egypt, sometimes overnight.

Mr. Lewin: --No, but it may in some way, in a very remote possible way -- I mean, I think under those circumstances, if there were a peace treaty and if Jerusalem were handed over to a Palestinian state, I think Congress would repeal the statute.

That's the point.

Congress has the power, has the authority under the Constitution to enact laws, and it is Congress that makes the decision even with regard to foreign policy issues.

Justice Sonia Sotomayor: The Constitution requires ambassadors to be appointed with the consent of the Senate.

It gives Congress the power of the purse.

So why don't -- why isn't the better view that we let Congress express its approval and disapproval in the mechanism set up by the Constitution to do so?

Meaning, if the President recognizes a country that Congress doesn't want it to recognize, it can withhold approval of an ambassador, it could refuse to fund the embassy.

It could do many other things.

But what entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?

Mr. Lewin: With all respect, Justice Sotomayor, I think history demonstrates that that's simply not true, that in fact Congress has had equal, quote, "recognition power", if in fact that's a power rather than a ceremonial duty.

We have in our reply brief gone through the fact that from Presidents Monroe, Jackson, Taylor, Lincoln, and even at the time of President McKinley, Congress said: We have the authority to be recognized -- to recognize.

Justice Elena Kagan: Mr. Lewin, this gets back to the question of exactly what congressional power you are basing your argument on.

You started by saying you were basing it on Congress's passport power, which is a function of its control over immigration issues.

Now you are saying Congress has a co-equal recognition power.

Which is it, or is it both?

Mr. Lewin: No.

It's in the alternative, Justice Kagan; it is both.

We submit first of all there is no exclusive recognition power in the President, if there is a recognition power, and we spell that out.

Justice Ruth Bader Ginsburg: Does that go the full length of saying if Congress passed a law that says the United States recognizes Jerusalem as the capital of Israel and Jerusalem must be designated as the capital of Israel in all official documents -- suppose that were the law.

I take it from everything you have argued your position would be yes, Congress has that authority.

Mr. Lewin: We say Congress has that authority.

But I have to add, Justice Ginsburg, that Congress has been very careful in the past and we believe it will be in the future to give the President broad authority.

To the extent that Congress has tried to do that, Congress has consistently said that the President can waive the moving of the embassy to Jerusalem, because Congress recognizes -- this is one of these very rare situations where Congress has said what the President has done and what the Department of State has done is simply wrong.

Justice Antonin Scalia: Mr. Lewin, you're -- it seems to me you are not arguing for a co-equal congressional power, you are arguing for a superior congressional power.

You are saying whatever Congress says, the President has to comply with.

Now, that's quite different from saying that they both have authority in the field.

And if they both have authority in the field and they are exercising it in different fashions, I frankly would not be inclined to intervene.

I would let -- I would them conduct the usual inter-branch hand wrestling that goes on all the time, which probably means that if Congress cares enough Congress will win, because, as you say, it has an innumerable number of clubs with which to beat the executive.

But if -- if the power is a co-equal power and they are both exercising it in a -- in a different way, why don't we just -- just, you know, let them go at it?

Why is it any of our business which is the better foreign policy position?

Mr. Lewin: We are not -- the Court is not being asked to determine what is the better foreign policy position.

Congress has determined--

Justice Antonin Scalia: Congress is supreme, then?

That is your position.

Not -- not that Congress has co-equal authority with the executive, but Congress is supreme?

Mr. Lewin: --No, there is two aspects to this, Justice Scalia.

One is the recognition power.

As to the recognition power, if it exists, Congress has it together with the President.

But with regard to foreign policy and with regard to the question of whether Congress can trump the President, this is not a new proposition.

The Court determined it in the steel seizure case.

The Court more recently in -- in approving Justice Jackson's tripartite scheme, approved it in Medellin v. Texas.

Justice Antonin Scalia: Well, Medellin involved a situation where the President's purported exercise of authority changed domestic law, and not simply domestic law, but domestic State law.

That seems to me to be quite a distinguishable circumstance.

Mr. Lewin: But what -- again, what Justice Jackson said was that when there -- the two are incompatible, then you look, the Court looks and scrutinizes, "subjects to scrutiny" -- those words are in Justice Jackson's standard -- scrutinizes what the President has done.

And we submit in this case, if the Court were to look at the answers to the interrogatories in this case, what is the basis for the President's policy, if one scrutinizes it, we say in our brief, it's -- we call it trivial, because what happens is the Department of State has said -- and again this is important in terms of this statute -- all that happens with this statute is that 50,000 American citizens have the same passport as 100,000 other American citizens who were born in Tel Aviv or Haifa.

It just says "Israel"; it doesn't say "Jerusalem, Israel"; it just says "Israel".

And the State Department says that's justified because Arab countries or Palestinians may be upset if they misperceive.

Chief Justice John G. Roberts: So you were suggesting that the outcome of this if Congress said Jerusalem is rea.

Mr. Lewin: I say it's a different case, yes, absolutely.

In this case what the -- the important thing about this case and this statute is that it gives the individual passport holder a choice.

Chief Justice John G. Roberts: Why is it -- why is it a different case?

Mr. Lewin: It's a different case because if it were to say "Jerusalem, Israel" there would be more of an argument.

Again, I'm not saying I would be here acknowledging that that's impermissible.

But it would be more of an argument that it appears to be some official approval of Jerusalem being in Israel.

Chief Justice John G. Roberts: So would there be -- there would be a greater concern -- the concern on the part of the executive that there would be adverse political reaction would have a greater degree of credibility?

Mr. Lewin: Somewhat greater degree.

Again--

Chief Justice John G. Roberts: So we are supposed to decide whether or not the executive is correct in saying that it's a significant problem.

And he says, well, he says that, but we know foreign policy better; we don't think it's going to be a big deal.

Mr. Lewin: --No, I don't think the Court is being asked to decide a question of foreign policy.

Congress has decided that saying "Israel" alone does not present a foreign policy issue.

Congress recognized that with moving the embassy there might be a foreign policy issue, so they said that the President can waive that.

With regard to this provision, Congress has said, no, there is not likely to be any foreign policy harm.

And all that the Court is being asked to do is it's being asked to enforce the congressional conclusion, which is, we submit, exactly what the third level under Justice Jackson's test is: That if in fact Congress decides that what the President has concluded or the Executive Branch has concluded is wrong, it may -- and it has the constitutional power to say -- with regard to foreign policy, we can exercise our determination.

Chief Justice John G. Roberts: I don't see Justice Jackson's analysis -- what he's saying, and I guess I don't think it's as controlling as others might.

He's saying when there is a conflict it's a harder case.

Mr. Lewin: Yes.

Chief Justice John G. Roberts: When there's -- when they agree it's an easy case.

When you can't tell it's sort of a middle case.

I don't see how that is very helpful in resolving the dispute before us.

Mr. Lewin: Well, because he says that when it's in the third category the Court has an obligation under those circumstances if it's going to keep the equilibrium of the balance of powers, to look at what the President's justification is.

The word "scrutiny" is in there.

That's not just a phrase that Justice Jackson has taken out of the air.

He says you are supposed to scrutinize it.

And if you scrutinize it in this case, there is nothing other than the possibility that there would be a misperception by Palestinians.

That's what the State Department is saying.

Justice Antonin Scalia: What -- what were we scrutinizing in the steel seizure case?

Mr. Lewin: I think in the steel seizure case the Court was scrutinizing whether, notwithstanding the fact that Congress did not give the President the power to seize steel mills, nonetheless whether there could be some justification that, even in contrary to Congress's wishes, the President would be able to exercise that power.

Justice Antonin Scalia: And what presidential power would have supported that, the war power?

Mr. Lewin: Possibly the claim that as Commander in Chief in the time of the Korean War he would be able--

Justice Antonin Scalia: Right.

He was claiming that the Korean War--

Mr. Lewin: --Entitled him to.

Justice Antonin Scalia: --required that these -- that these companies remain in business.

And I guess we did scrutinize that.

What did we conclude, that that was--

Mr. Lewin: I think the Court concluded that no, that did not justify the exercise of the President's power even though it was--

Justice Anthony Kennedy: But that wasn't a case -- that wasn't a case in which the Congress had said you may not seize mills.

And that's what your case is.

So there's a difference.

Mr. Lewin: --Well, but that's -- that's an a fortiori situation, Justice Kennedy.

If if Congress didn't even say you may not seize steel mills, but simply because they didn't give the President affirmatively the authority--

Justice Anthony Kennedy: It is if you assume that the statute is valid.

Mr. Lewin: --Well, but the statute in this case -- again I come back to the fact that the statute in this case is a passport statute.

Justice Anthony Kennedy: If the statute is invalid we are in category one.

Mr. Lewin: Yes.

Justice Anthony Kennedy: Or two.

Mr. Lewin: But the statute in this case is on its face a passport statute.

There's no reason--

Justice Elena Kagan: But it's a passport statute that--

Mr. Lewin: --It's an identification.

Justice Elena Kagan: --I'm sorry.

It's a passport statute that seems to have nothing to do with the immigration functions that passport statutes usually serve.

It seems to have everything to do with Congress's declaration of a foreign policy, as opposed to Congress's exercise of power relating to immigration control.

So convince me that I am wrong on that.

Mr. Lewin: I think you are wrong on that, Let me explain why.

Justice, and let me explain why.

Because it is clear from the history of this line on the passport that it is purely an identification of the individual; it is not an exercise of any foreign policy.

Indeed, the passport statute itself says that a passport is

"any travel document issued by competent authority showing the bearer's origin, identity, and nationality. "

And in this case, the history of this line on the passport demonstrates I think conclusively, and the State Department has acknowledged it, that it is purely a means of identification.

And what Congress has said is, with regard to these citizens we will permit them to identify themselves, like Congress permitted the Taiwanese to identify themselves.

Justice Samuel Alito: Are you suggesting Congress enacted this because they thought that if these individuals' passports simply said "Jerusalem" there would be an identification problem?

Mr. Lewin: Not be -- Justice Alito, it is not because there would be an identification problem.

But there was -- Congress recognized that with regard to the 50,000 people who have a passport that says "Jerusalem", they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification.

This is not a statute that is designed to create some political brouhaha or make a foreign policy statement.

It's a statute that frankly fits in with what the State Department does in accommodating to individual passport holders.

The State Department says if you are a Palestinian or an Arab and you are born in Haifa and you don't like seeing "Israel" in your passport, we will allow you to eliminate "Israel" from your passport.

And all that Congress has said is--

Justice Elena Kagan: That might be true, Mr. Lewin.

I think you would have a better argument if this statute said if you were born in Jerusalem you can pick anything you want in your passport; you can pick Jerusalem, you can pick Israel or you can pick Palestine.

But the statute in fact doesn't say that.

It says you can pick Israel.

So why isn't that a statement of foreign policy as to recognition that Jerusalem is the capital of Israel as opposed to what you are characterizing it as, which is a sort of freedom of sort of choice provision?

Mr. Lewin: --I think that what you said the statute doesn't say, Justice Kagan, is exactly what the statute does say.

The statute does say that the individual passport holder can choose to say Israel or can keep it as Jerusalem, and if he's born before 1948 he can say Palestine.

So it is an individual choice.

Justice Elena Kagan: Well, you have to be very old to say Palestine.

Mr. Lewin: Pardon?

Pardon?

Justice Ruth Bader Ginsburg: Not all that old.

[Laughter]

Mr. Lewin: It's -- I guess it's a reflection on my own seniority that -- it's my generation that fits into that.

But -- but the fact is exactly; our point is that that's all that the statute does.

The statute is a means of permitting self-identification by an American citizen who says: My birth in Jerusalem, indeed in West Jerusalem, which has always been recognized as a part of Israel, I want to call -- I want my passport to say "Israel".

Chief Justice John G. Roberts: But it's recognizing that principle only with respect to a particular jurisdiction.

An American citizen born in Northern Ireland doesn't have this option, because he thinks it's a part of Ireland.

Mr. Lewin: No, but an American citizen born in Taiwan apparently does have that option, even the though the United States says we don't recognize Taiwan as an independent country.

Chief Justice John G. Roberts: And your -- and your friend on behalf of the United States says that's because of a State Department judgment that in one situation it's significant, in the other it's not.

Mr. Lewin: Well, no, it's not just because.

It's because what happens is there is a recognition in both cases that it is a personal identification choice with regard to what goes on the passport.

Sure, in that case the State Department didn't take it to litigation, although I submit that had they chosen to litigate that case they would have a stronger position than they have in this case.

Justice Antonin Scalia: --But a personal identification choice can also have significant foreign policy implications, can it not?

Is -- is that an either-or situation?

What the State Department is saying is to allow this particular personal identification choice may antagonize some foreign nations that we don't want to antagonize.

What if they gave them the choice of saying

"Israel, the only democracy in the Middle East. "

Okay, that's their choice.

They can have that on their passport.

Would that be okay?

Mr. Lewin: I have to say that, given this Court's view about Congress's power with regard to A-passports -- and again, I go back to the fact that in Zemel and Rusk, in Haig and Agee, in Kent v. Dulles, in all these passport cases this Court said we look to see whether what the President does is authorized by Congress, whether implicitly or otherwise.

So that, I submit, that with regard to passports you need the congressional authority, whether it's implicit or express.

And with regard to your question, Justice Scalia, yes, Congress could in its exercise of its passport authority say: here is what the passport has to say.

It would be a foolish statute.

But this Court has said, and I think you, Justice Scalia, have said it many times, it's not the Court's job to determine whether Congress is foolish or not.

If Congress decides that, look, somebody born in Israel, a passport should say

"Israel, the only democracy in the Middle East. "

Congress can say that.

Congress has passport authority.

And this--

Justice Ruth Bader Ginsburg: Well, what is--

Mr. Lewin: --and this has to do with the contents of the passport.

Justice Ruth Bader Ginsburg: --Mr. Lewin, what you've argued is that you are skipping over the question that the D.C. Circuit decided.

I take it your view is it's not a political question, so the Court should resolve the merits?

Mr. Lewin: Our view is it's not a political question because it is like many other questions that affect foreign policy.

And the Court said in Baker and Carr, not every decision that touches on foreign affairs or foreign policy is a political question that can't be determined.

It -- it -- arguably, according to the government, this affects foreign policy.

We say it is simply Congress having passed a statute which either is unconstitutional -- we say it is constitutional -- either is unconstitutional or the Court should simply enforce it, like in the Japan Whaling case.

In the Japan Whaling case, this Court rejected the claim that the outcome of a determination by the Court might very well affect foreign relations and said it's not a political question.

I would like to reserve the remaining time for rebuttal.

Thank you.

Chief Justice John G. Roberts: Thank you, Mr. Lewin.

General Verrilli.

ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE RESPONDENT

Mr. Verrilli Jr.: Mr. Chief Justice and may it please the Court:

The Executive has determined that the passports it issues should not identify Israel as the place of birth for persons born in Jerusalem.

Petitioner seeks relief under section 214(d) that would countermand that executive judgment.

But under the Constitution that is an exercise of the Executive's exclusive recognition power.

The Constitution commits that power exclusively to the Executive and neither a court nor the Congress can override that judgment.

Chief Justice John G. Roberts: Your friend--

Justice Ruth Bader Ginsburg: Well, the--

Chief Justice John G. Roberts: --Your friend documented contrary history at some length in his reply brief, where from the beginning at least as he says through the McKinley Administration, the two branches acted as if they had co-equal authority.

Mr. Verrilli Jr.: Mr. Chief Justice, if I might spend a minute or two on that history, because I don't think it shows what my friend suggests that it does.

Before getting to the starting point of that story, which I think is the Monroe Administration, I would like to point out that in the Washington Administration the President confronted the question with respect to whether to recognize the revolutionary government of France.

And President Washington consulted with his cabinet, and of course his cabinet included Jefferson and Madison and Hamilton and Jay.

And they decided that this was a power that was exclusive to the President to such an extent that they didn't even need to send a message to the Congress that they were going to recognize the new revolutionary government in France.

Now, the second fact I think is critical as a matter of history is that there is not a single piece of legislation that has passed both houses of Congress and come to the President purporting to recognize a foreign nation or territorial boundary of a foreign nation.

Justice Samuel Alito: Has there ever been an instance in which the President has recognized a foreign government over Congress's sustained objection?

Mr. Verrilli Jr.: I don't -- I can't think of an instance of Congress's sustained objection.

I think probably the closest we would come is the revolutionary government of Mexico, which President Wilson first recognized on a de facto basis in 1915 and a de jure basis in 1917.

Congress indicated displeasure with that.

President Wilson sent his message to Congress saying that this is an exclusive executive function.

Congress backed down.

Justice Stephen G. Breyer: What would have been the reasons that -- because your friend says that this is an a fortiori case from everything, because all of these words -- every time the word "exclusive power" has appeared in any source -- I think that's what you are saying -- it is meant that the President can act without supporting authority from Congress.

But there never has been a case or a suggestion that the President can act where Congress has legislated to the contrary.

Now, I think that's the -- that's the argument.

And so what -- I would like to hear what you have to say about that argument.

Mr. Verrilli Jr.: Yes.

Yes, I will answer that question directly.

Justice Stephen G. Breyer: Uh-huh.

Mr. Verrilli Jr.: It is true that the Court has never before, with respect to the recognition power, confronted the question of whether the President is free to act in a manner different than a congressional command because Congress has never purported to issue a command.

That does not mean, however, that my friend is correct that this is a situation in which Congress has the authority to countermand or direct the decision of the President.

This is, we submit -- even if one thinks about this as a Youngstown category three case, this is a Youngstown category three case of the kind that Justice Jackson identified in footnote 4, where he cited Myers v. The United States.

The kind of case in category three of Youngstown, in which the President's judgment can prevail even over a contrary judgment of Congress, is a case in which the President has exclusive authority.

Justice Stephen G. Breyer: All right now, but my question is what leads you to that conclusion.

Mr. Verrilli Jr.: Well, let me--

Justice Stephen G. Breyer: There are very, very few cases I can ever think of where -- where the President -- where the Court has said the President can act contrary to a statute.

And so the point of my question was to get you to talk about why, even though this is a fortiori.

Mr. Verrilli Jr.: --So, I do think, if I could -- I think it would be helpful in answering your question, Justice Breyer, if I could return to the Chief Justice's question about history.

Moving beyond that initial recognition by Washington that this is an exclusive power, which I think is quite significant, when we get to the Monroe Administration there is a fight between Clay and Monroe about whether the President has exclusive authority to recognize the new South American republics.

Now, a couple of points there.

I think the -- what -- the only thing that one could point to as an action by the Congress that even implicates the recognition power is one house of Congress passed an appropriations measure for an ambassador.

What the -- the history treatise, the global treatise that my friend cites says on page 133, the very page that he cites in his reply brief, is that Clay's effort to contest the President's exclusive authority came to a, quote, "inglorious end, unquote".

He then goes on to say -- my friend goes on to say: Well, but a year later when President Monroe sought to actually recognize these South American republics he asked -- he asked the Congress to join him in it.

What he asked Congress for was an appropriation for an ambassador.

But it was not the sending of an ambassador to the Republic of Columbia that was the recognition.

It was when President Monroe received an ambassador from Columbia that constituted the recognition, and that was an exclusive act that he undertook without any consultation with Congress.

Now--

Justice Ruth Bader Ginsburg: --The two examples you are given in the brief, one of Texas, where Petitioner says there was a case where Congress went for -- Congress recognized and the President acquiesced, and the same thing with Taiwan; it was a statute and the President implemented it.

So Congress thought it had the authority, the recognition authority, in those two measures and the President acquiesced.

Mr. Verrilli Jr.: --I would like to address Texas because I do think that's probably the most significant example that my friend's identified.

But even there, I think if one works through the history we'll see that's it's an exclusive executive power.

President Jackson, in his first letter in 1836 to the Congress says essentially: I hear you; you think you we should recognize Texas.

And then he says: It's an open question as far as I am concerned whether there is exclusive authority or not.

It's not been something that the legislature has ever studied, but as a matter of expediency, he says, we don't need to resolve that question, because I want to work with you.

He then goes on to caution the Congress to not move too quickly for fear of precipitating war with Mexico, which I think, Justice Breyer, I will try to return to a functional analysis later, and I think it's an important point.

Then -- I think what is important, Justice Ginsburg, is that what Congress did next, as to pass two appropriations measures, one in the House, one in the Senate.

Each of those measures appropriates funds for an emissary to the Republic of Texas, but each includes language that says: At such time that the President determines that it's appropriate to do so.

If one looks at the page in the Congressional Globe that my friend cites, one will see that that language was added because as originally introduced the appropriations riders were objected to by members of the Congress on the ground that they infringed on the President's exclusive recognition authority.

Chief Justice John G. Roberts: Counsel, if I could just stop you and just have you address the political question doctrine.

Mr. Verrilli Jr.: Certainly.

Chief Justice John G. Roberts: You say this is exclusively committed to the President and therefore it is a non-justiciable political question.

How is that different from saying, it's our job to decide cases, it is justiciable, and then you can argue that the answer of that analysis is that it is exclusively committed to the President?

I don't understand why labeling it a political question advances the analysis much.

Mr. Verrilli Jr.: Well, I think we agree, Mr. Chief Justice, that there isn't a very great deal of difference.

We acknowledge that in conducting the political question analysis that it is for the Court do decide whether there is a textual commitment to the executive; it is for the Court to decide the scope.

We think that's what Nixon v. The United States says; it's what Powell v. McCormack says; and that in answering those questions we think that the Court will have gone a very long way to determining the question of the constitution--

Justice Ruth Bader Ginsburg: Why not all the way?

I mean, if the Court decides that the Constitution commits this authority exclusively to the President, then it's all over.

That's the merits of the case: Does the President have this authority?

So the political question label seems to be kind of a -- a substitute because if there is a textual commission, commitment to the President, that's the end of the case.

Mr. Verrilli Jr.: --Well, the -- I do think that with respect to the first Baker v. Carr factor, textual commitment is a factor that the Court has indicated is one that can lead to the conclusion that it's a political question.

I do think that the Court has to go through the analysis.

And so at the end of the day, there may not be very much of a difference--

Justice Samuel Alito: Well, doesn't it depend on what the question is.

In order to decide whether it's a political question, you have to identify the question.

Now, if the question is whether the President has exclusive authority with respect to the formal recognition of a foreign country that might be one thing.

But what if the question is whether the President has exclusive jurisdiction with respect -- has plenary authority, unreviewable authority, with respect to anything that the President thinks has a bearing on the question of recognition.

Now, if that's the question, is that committed exclusively to the President?

Mr. Verrilli Jr.: --No, Justice Alito, we don't -- we think Powell v. McCormick and Nixon say that the question of -- not just the question of commitment, but also the question of scope, are questions for the Court to decide.

Now, we do think, with respect to the question here that, even though it's for the Court to decide, it's for the Court to decide with a very significant measure of deference, because when -- the decision by the executive with respect to how it's going to handle the status of Jerusalem in passports is a very sensitive and delicate matter.

This position was arrived at after very careful thought and it is enforced very carefully.

And I think from that should come the lesson that this judge -- and the reason is because the executive believes that the statement on the passport has to be understood as a manifestation of the President's exercise of the recognition power.

Justice Elena Kagan: Suppose, General Verrilli, suppose that this statute, there was a -- the section that's there now and then there was another section, and the section said:

"The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel's sovereignty over Jerusalem. "

Would that be constitutional?

Mr. Verrilli Jr.: I don't think it would change the analysis, Justice Kagan.

I -- I think -- of course, that is not this statute, which has a title which says

"United States policy with respect to Jerusalem as the capital of Israel. "

But--

Justice Elena Kagan: No, my statute has a title which says

"Identification of Persons Born in Jerusalem. "

Mr. Verrilli Jr.: --I still think that would be within the scope of the Executive's power to decide because the content of the passport insofar as the Executive believes that it constitutes an expression of -- of, an incident of recognition, is a judgment that the Executive makes.

Now, the Court can review that, but the Court's review of it should be done with a significant measure of deference as the Court suggested in Regan v. Wald--

Justice Sonia Sotomayor: General, what is--

Justice Anthony Kennedy: That seems to me different than the rationale of the D.C. Circuit.

It seems to me you are not defending the rationale of the D.C. Circuit--

Mr. Verrilli Jr.: --No, we--

Justice Anthony Kennedy: --that there's no jurisdiction.

And -- you know, it's always awkward for us to tell counsel what's in their best interest, but -- but it does, it does seem to me that your position would be much stronger if you said there is jurisdiction and the President wins.

Mr. Verrilli Jr.: --Well, we think -- we do think that if there is jurisdiction, the President wins.

But we do think that the D.C. Circuit acted appropriately in finding that--

Justice Anthony Kennedy: Because if this -- if this rationale remains the law and is the law, then you have the specter of constant legislative determinations that are not clearly -- not clearly invalid.

And it seems to me that's, again with all due respect, not in the best interest of the ultimate argument you are making.

Mr. Verrilli Jr.: --Well, we appreciate that, Justice Kennedy.

We do think that in resolving a political question -- in conducting the political question analysis, the questions that the Court would need to decide under Nixon and Powell would go a very long way to clarifying that problem.

Chief Justice John G. Roberts: What if--

Justice Sonia Sotomayor: --General--

Chief Justice John G. Roberts: --What if Congress's statute said: What you must put on the passport, if requested, is "Israel", parentheses, "Disputed", close parentheses, which would seem to take care of your objection that people are going to look at this and draw a false conclusion.

Mr. Verrilli Jr.: I don't think that changes the analysis, Mr. Chief Justice, because I think that the -- to the -- because it would -- that would be again Congress seeking to direct a judgment of the--

Chief Justice John G. Roberts: It is the position of the administration, isn't it, that the status of Jerusalem is disputed?

Mr. Verrilli Jr.: --That's correct, Mr. Chief Justice, but it -- what the United States says about that in official communications -- and remember, a passport is not a communication by the passport holder.

It's an official United States document that communicates the position of the United States.

Chief Justice John G. Roberts: So what if Congress says in the place that you have it: This person has the choice of whether or not to put Jerusalem or Israel.

This doesn't affect whether the United States recognizes Jerusalem as part of Israel or not; it's just his choice.

Same problem?

Mr. Verrilli Jr.: Same problem, Mr. Chief Justice.

This is--

Chief Justice John G. Roberts: Really?

I thought your argument was that someone's going to look at that and say: That offends me, that you are calling this part of Israel.

That was the foreign policy significance.

And I tried to give you a hypothetical in which nobody could reasonably draw that conclusion, and you say still, same thing.

Mr. Verrilli Jr.: --I do think that this is an area in which the executive's got to make the judgment because it's of paramount importance that the nation speak with one voice.

Justice Ruth Bader Ginsburg: Then, Mister -- General Verrilli, then you are taking the position that this is not a shared authority; it's an exclusive authority; that there is no role for Congress.

Am I right?

Or is there some role in recognition for Congress?

Mr. Verrilli Jr.: Our position, Justice Ginsburg, is that the recognition power is exclusive to the President.

Justice Antonin Scalia: What if -- what if the recognition of a breakaway province of a foreign country by the United States will clearly provoke a war with that country.

Would Congress have the power to decree that the President shall not recognize that breakaway province, knowing -- knowing that if he does recognize it, that country will declare war on the United States?

Mr. Verrilli Jr.: I think, Justice Scalia, that's a situation in which the President would exercise that recognition power very carefully--

Justice Antonin Scalia: No, no.

We have a foolish President.

[Laughter]

Contrary to our entire history, we have a--

[Laughter]

Mr. Verrilli Jr.: --I think -- although I don't -- I just don't think that in a situation like that, the President would exercise a recognition power, but if -- but if the President did, it's the President's judgment to make.

And I -- Justice Breyer, if I could get back to your question, the--

Justice Antonin Scalia: Please stay on this.

I am -- I am willing -- our -- our cases say repeatedly that the President is the sole instrument of the United States for the conduct of foreign policy, but to be the sole instrument and to determine the foreign policy are two quite different things.

To say he's the sole instrument simply means that congressmen traveling abroad, or globetrotting ex-presidents, nobody except the President of the United States pronounces the foreign policy.

But it doesn't necessarily mean that the President determines everything in foreign policy.

He's the instrument, but there is certainly room in -- in those many cases for saying that Congress can say what the -- what it's -- what the country's instrument is supposed to do.

Mr. Verrilli Jr.: --I -- I think with respect to the question of recognition, Justice Scalia, that it is a power that rests with the executive.

And I think in addition to the history -- in that we do now in 220-plus years in our Constitution, do not have a single example of Congress actually exercising the power -- and I think in addition to the history, there are very good functional reasons why that is so.

And I think, Justice Breyer, in answering your earlier question, I think those are significant.

The exercise of the recognition power depends, we think, on three things that make it clear that it needs to be exclusive.

The first is timing; the second is expertise; and the third is a need for secrecy.

Timing--

Justice Anthony Kennedy: I didn't hear the third.

Mr. Verrilli Jr.: --The need for secrecy.

Timing is, I think the Israel example shows, is of critical importance.

But it's not just speed.

Of course, Congress can't act with the dispatch needed in a situation like the recognition of Israel.

But the -- but apart from that, recognition -- a recognition that occurs too soon could send events in the direction that could be very disadvantageous to our foreign policy.

A recognition that comes too late could -- could squander an important opportunity in the national interest in the foreign policy realm.

Justice Elena Kagan: General Verrilli, is the textural basis for your argument that the President has exclusive power here?

Is it the receipt of ambassadors clause alone, or is it something else?

Because I was frankly a little bit surprised that your brief put so much weight on that receipt of ambassadors clause, which arguably was meant to give the President a purely ministerial function.

And so literally, on any other power that the President has.

Mr. Verrilli Jr.: So -- here's our position on that, Justice Kagan.

We do think that the reception clause is the source of the recognition power.

Hamilton identified it as the source of the recognition power in the Washington administration.

I think it's now understood that it's hornbook law that that's the textual source -- but to the extent that--

Justice Antonin Scalia: Well, it's the best there is.

I mean, if you've got to cast about for something, I suppose -- I don't know what else you'd -- you'd land upon.

Mr. Verrilli Jr.: --It is there.

Justice Antonin Scalia: Well, it is there.

Mr. Verrilli Jr.: And I would say in addition -- I would say in addition, to the extent that there is a question, we do think, as I think we indicated in our brief, that -- that one can see this power as part of what the Court in Garamendi described as the vast share of responsibility that the Constitution assigns to the executive.

Now, we don't think all of that shared responsibility is exclusive to the Executive -- but we think this responsibility is exclusive--

Justice Elena Kagan: So if that provision were not in the Constitution, would you be making the same argument you are now?

Mr. Verrilli Jr.: --If the reception clause were not in the Constitution -- but we had the same history that we have now and the same functional considerations about the need for it being in the control of the executive, yes, we would.

Justice Samuel Alito: There are many things that Congress could do to frustrate the President's decision to recognize another country.

Now, would you say all of those are unconstitutional?

They all infringe the President's exclusive recognition authority?

Suppose the President decides to recognize a country and Congress refuses to appropriate any money for an embassy there, or refuses to confirm any U.S. ambassador to that country.

Those presumably would not be unconstitutional, would they?

Mr. Verrilli Jr.: The -- I think that there would be a difference between -- I -- I think that -- that Congress has authority over appropriations.

Congress has authority to appoint ambassadors.

It's entitled to exercise that authority, and it's entitled to exercise that authority even if it's intentioned with the President's recognition decision.

It is the position of the executive though that there could be circumstances in which Congress could try to exercise its appropriations authority in a way that would preclude the executive from exercising its -- its recognition power, and that -- the executive would -- would in some circumstances believe that it had the authority to move ahead despite those actions by Congress.

But of course, this is not a situation in which Congress has passed a sense of the Congress resolution about what it thinks.

It's not a situation in which Congress has exercised attaching conditions to its spending power about what private parties do.

This is an effort by Congress to regulate the content of a passport, which, as the Court recognized in Haig v. Agee, is a core instrument of diplomatic communication.

Justice Samuel Alito: Do -- do you think that's an exclusive power, to -- to determine of the contents of passports?

Hasn't Congress exercised that authority for a long time?

Mr. Verrilli Jr.: We -- we don't think that the -- the entire content of passports is an exclusive power.

I would -- and I will explain, Justice Alito, where we think the line is.

But before doing so, I want to push back a little bit on the notion that Congress has for a long time exercised authority over the content of passport the.

The first Passport Act was in 1856.

What this Court said in Haig v. Agee was that the enactment of that statute merely confirmed a power that everyone understood to be inherent in the executive.

That statute did not purport to regulate the content of passports.

It in fact said that passports shall be issued under such rules as the President shall proscribe.

And -- and in Haig, that was that language I think that led the Court to conclude that this was a confirmation of the executive's authority, and an action in aid of that authority.

Now--

Justice Stephen G. Breyer: I just want -- I don't want the time to elapse.

You can finish that if you'd like.

I'd just like somewhere a few words about the political question, which you don't believe in -- from reading your brief.

I would say you don't believe in it much.

And my question on the political question for either of you is this: that -- that this is an area of foreign affairs.

It's an area of -- of, you know, recognition.

We know that.

Never has this Court or anyone else held that Congress can go ahead in this area over a law passed by Congress.

But it is passports, which both regulate.

And our real problem is these are words that are officially said and they are detailed words, and those words may really disrupt coherent foreign policy.

Viewed that way, there are billions of words that might have the same effect.

And do we know that these words No, judges don't know will and some other words won't?

that.

And therefore, when you get into this area, the best thing to do is avoid multifarious pronouncements by various departments of government on one question, do not respect the views of other branches, and judges, stay out of it.

Let them work it out by themselves.

I just want a word from either you and really Mr. Lewin on -- on that.

Mr. Verrilli Jr.: --Well, we do think -- that's -- that's what -- we think that the appropriate inquiry for political question purposes is into the relief that the Petitioner is seeking.

And if the relief the Petitioner is seeking would invade the kinds of judgments that the Constitution commits exclusively to the executive, and the reason it commits these kind of judgments exclusively to the executive is because this is a situation in which multifarious voices are inimical to the national interest.

Justice Ruth Bader Ginsburg: But that is -- that presents a merits determination.

The whole question is who has the authority.

And whatever label you put on it, if you decide that the President has, as you just said, the exclusive authority, that's the end of the matter.

It's -- it's not leaving it -- it is not leaving it, as Justice Breyer said, to the political branches to fight it out between them.

It is saying the President has the exclusive authority.

Mr. Verrilli Jr.: Well, I -- I think in -- in -- let me try to put it this way, Justice Ginsburg: in the absence of section 214, I think it would be clear from Pink and Belmont that this -- that the judgment on recognition is exclusively committed to the executive, and it would be a political question, if a party came in and said I want my passport to say something different about Jerusalem than it says--

Justice Sonia Sotomayor: --General, the -- the tension that I see here, and I think it's what Justice Breyer's getting at, is the label's important, because if we call this a political question and don't address the merits, the outcome is that the President is saying that he's entitled to ignore the Congress.

I don't know what kind of message that sends, but it's a little unsettling that a Court charged with enforcing the laws passed by Congress are basically saying we are not going to determine whether this law is constitutional or unconstitutional.

That's what your definition of political question is becoming, and where does that stop?

Mr. Verrilli Jr.: --Well, I--

Justice Sonia Sotomayor: In what situations?

Only in foreign policy do we decide not to--

Mr. Verrilli Jr.: --I think, Justice Sotomayor, it's actually quite narrow, and the problem isn't a significant one in the case of textual commitment, because the Court does in reaching the conclusion, as the D.C. Circuit did, that it's a political question the Court does have to decide whether there is a textual commitment to the executive here, so the Court would resolve that question.

The Court would resolve that question of whether the conduct at issue here is within the scope of that textual commitment.

So the Court would issue those rulings.

Chief Justice John G. Roberts: And what you told--

Justice Sonia Sotomayor: --But that's not what the D.C. Circuit did.

Chief Justice John G. Roberts: --You told -- you told Justice Kagan it didn't -- your position didn't depend upon a textual commitment, that your position would be the same if the receive ambassadors clause were not in the Constitution.

Mr. Verrilli Jr.: But I -- I didn't mean that it it wouldn't be a textual commitment.

It would be -- would be a commitment that one would read as the historical gloss on the vesting power, which is what -- Garamendi said.

Chief Justice John G. Roberts: That sounds to me like not in the text.

Mr. Verrilli Jr.: Well, I think it's the historical gloss on the vesting power is -- functions as has the equivalent of the specific textual commitment.

Of course, we do have the specific textual commitment here, the--

Justice Antonin Scalia: This textual commitment applies when somebody comes to the Court and asks for the Court to make the decision.

If the plaintiff here had come in and -- without a congressional statute to rely upon, and had said, it is -- it is wrong for the State Department not to let me say Israel on my passport, then we would say, you know, textually committed to the executive.

But this is a different situation where you have a -- a dispute between the two branches, and where that happens, I find it hard to say, well, you know, we can't get into it -- because why?

Because it's textually committed to one of the branches?

It seems to me we have to resolve that question.

Mr. Verrilli Jr.: --Well, as I said earlier, I tried to say, we think that the -- the announcement of the political question doctrine goes a very long way towards answering that question, Justice Scalia.

We do think this could be seen as a case like Gilligan in looking at the relief that the petitioner is seeking, the plaintiff is seeking leads the Court to conclude that this -- that -- that entertaining the claim would embroil the Court in decisions that are supposed to be made by another branch; and that in fact, I think you can understand section 214(d) as precisely that, an effort to try to draw the Court into this dispute between Congress and the executive over whether section -- over whether Jerusalem should be recognized as part of Israel.

Chief Justice John G. Roberts: I will give you a couple more minutes.

If my colleagues have any questions?

Justice Antonin Scalia: Yes, I -- I wanted to follow up on that.

Does -- does that mean you're content to have this Court not say whether it's the exclusive executive power or there's some congressional participation?

I mean, if we just abstain, if we just say it's none of our business, it's none of our business; let you two guys fight it out.

That's not what you are asking us to do, is it?

Mr. Verrilli Jr.: That's correct, Justice Scalia.

It's what we are asking you to--

Justice Antonin Scalia: You are asking us to decide the question that it is exclusively the presidential power.

Mr. Verrilli Jr.: --Yes.

That is correct.

Justice Antonin Scalia: That doesn't sound to me like -- you know, like abstaining because it's a political question.

It seems to me like deciding thecase.

Chief Justice John G. Roberts: Do you want to answer?

Mr. Verrilli Jr.: We -- we do think that the -- whether the Court is looking at it as a political question or whether the Court is looking at it as a judgment of the merits, the issue is textual commitment.

This is -- there is textual commitment.

This is a situation in which the country has to speak with one voice, and the executive has determined what the country should say.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Lewin, we will give you 6 minutes.

REBUTTAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF THE PETITIONER

Mr. Lewin: Thank you, Mr. Chief Justice.

Let me begin my rebuttal by echoing really what Justice Alito said during my colleague's argument.

The question is whether anything that the President thinks bears on recognition, it forecloses this Court or any court from making that determination?

This is not in our view a recognition case.

This is a passport case.

The question is, what goes on the passport, and may somebody self-identify?

This is again, if one looks at the statute, if one even looks at the Foreign Affairs Manual, a passport is not today considered a diplomatic statement, it's an identification of a person in order to enable him to travel abroad.

Now again, let me also echo what the Chief Justice and Justice Kagan asked during my colleague's argument.

If in fact the statute had said we don't say Jerusalem is part of Israel, but you can identify yourself as being in Israel, my -- we submit that result can very easily be achieved and was achieved in the case of Taiwan by a public statement by the executive.

Congress -- this law can be enacted; people who were born in Jerusalem can have their passport say either Jerusalem or Israel, that's their choice; Congress hasn't said it has to say Israel, and then the Department of State can issue as it did in the case of Taiwan, a public statement saying, this is not official American policy.

Nobody's asking this Court to decide what is official American policy.

Nobody is asking the Court to decide what as Justice Scalia said would happen if there were no congressional statute.

In that case it would be a political question.

If my client had decided he wanted to have his passport say Israel and he had no congressional stature, and we brought the case to a court, the court could say, no, you are asking us to decide what the President should decide, what the Department of State should decide.

But other than that, Congress has enacted the law.

The -- the fact is that with regard to this legislation it is a statute which determines personal choice with regard to a passport.

The case can be a vehicle -- this case can be a vehicle for an authoritative clarification of the roles of Congress and the President in conducting the nation's foreign affairs.

If so, then we submit Justice Jackson's statement, which acknowledges that Congress has the final word in the third category, is one that should control.

But there are narrower grounds for enforcing section 214(d) that do not implicate separation of powers issues.

It's a passport law; it's within Congress's constitutional authority on the cases that have recognized that the President may not deny or restrict passports without the express or implied approval of Congress.

That doesn't require the recognition or involve the recognition of foreign sovereigns.

And the State Department's justification for a policy that Congress has disapproved does not -- withstand -- scrutiny.

The Court merely has to look at the record in this case in which the State Department has said, look, we're concerned that there may be a misperception of what this means -- a misperception.

And it's extraordinary that on the basis of the fact that there is an alleged misperception, American citizens who have been authorized by Congress to say -- identify themselves on their passports as being born in Israel, will now find that statute null and void.

Justice Sonia Sotomayor: Could you tell me -- let's assume that a dozen nations said this designation on the passport as we view is an act of war.

If the United States is going to do this, we're going to view it as an act of war.

Would that then permit the President to ignore Congress's--

Mr. Lewin: I think Congress has to weigh that; and if Congress determines that in any event this is what the passport should say, then that is Congress--

Justice Sonia Sotomayor: --So it's not the misperception that's at issue.

Mr. Lewin: --Well, in this case--

Justice Sonia Sotomayor: The misperception has nothing to do with your argument.

Mr. Lewin: --I -- I don't think that's true, because--

Justice Sonia Sotomayor: You are going back to Justice Scalia's point, which is what you're saying is Congress dictates foreign policy in the end.

Mr. Lewin: --In the end, if Congress determines that what the President has said in this context is wrong, yes.

We live in a system under which Congress passes the law, and the President has the duty -- and I think Justice Scalia has said it, has the duty to be the sole instrument of foreign policy.

The President speaks for the foreign policy that -- when Congress authorizes him to do it, he may formulate it.

When Congress does not authorize him to do it, he may formulate it.

But when Congress disapproves of what he does, then under Justice Jackson's test in the steel seizure case, Congress prevails.

The fact that there is dictum in cases -- particularly Curtiss-Wright, which has not come up in the course of the argument, but justice Sutherland's opinion in the Curtiss-Wright case in which he spoke broadly of the President as being the sole organ of foreign policy, one has to say that the Harvard professor Thomas Reed Powell, who used to tell his students that just because Justice Sutherland writes clearly, you must not suppose that he thinks clearly.

[Laughter]

And we submit that is really what it's all about.

Justice Anthony Kennedy: I -- just -- just one question on -- on Washington's recognition of revolutionary France.

You cite in the reply brief the fact that the administration was simply following what it deemed to be a dictate of international law.

Do you want us to infer from that that he was not exercising real discretion there?

Mr. Lewin: Correct.

The -- historians who studied that have determined that he was just following Mr. Vattel, who said you had have to recognize any country that has de facto control, and therefore, since the French revolutionists were in de facto control of the French Government, Washington had no choice.

He was not exercising any kind of discretion.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: I have the opinion of the Court this morning in case 10-699, Zivotofsky versus Clinton.

In 2002, Congress passed a law providing that an American citizen born in Jerusalem may choose to have his place of birth listed as Israel on his passport.

Menachem Binyamin Zivotofsky was born in Jerusalem shortly after the law went into effect.

He was an American citizen because his parents were.

His mother applied for a passport for her son and said she wanted Israel listed as his place of birth as the law allowed.

The State Department refused her request and issued the boy a passport listing only Jerusalem as his place of birth.

It was and remains State Department policy not to follow the statute allowing Israel to be listed as the place of birth on the ground that the law interferes with the President's Foreign Affairs power.

Zivotofsky's sued the Secretary of State in federal court here in the District of Columbia.

The Secretary responded that the Court should stay out of the matter, arguing that it presented a political question beyond the authority of the Judicial Branch to decide.

The lower courts agreed with that position.

We granted Zivotofsky's petition for review and now reverse.

In general, of course, the judiciary has a responsibility to decide cases properly before it even those, as Chief Justice Marshall put it 200 years ago, that it would gladly avoid.

Our precedence however, recognized a narrow exception to that rule known as a political question doctrine.

Under that doctrine, a court lacks the authority to decide a case if it, one, involves a question that the Constitution has clearly committed to another branch to decide or two, if there are no judicially manageable standards for courts to use in deciding it.

The lower courts thought that Zivotofsky's case presented such a political question because it asked the courts to decide the political status of Jerusalem, but it does not do that.

The question for the Court to decide is instead whether the State Department is required to follow the 2002 law that gives Zivotofsky the right to have Israel recorded as his place of birth.

The Secretary of State argues that the law is unconstitutional because there is in the Constitution an exclusive commitment to the President of the power to recognize foreign governments, but there is no such exclusive commitment to the Executive of the authority to determine the constitutionality of a statute.

Zivotofsky claims that the law is a valid exercise of Congress' own powers.

Deciding which party is correct is well within our authority and, as we put it in one of our prior cases, we cannot avoid the duty to decide such a question simply because the issues have political implications.

In addition, there is no absence of judicially manageable standards for resolving this case.

Both Zivotofskys and the Secretary of State offered detailed, textual, structural, and historical arguments about the constitutionality of this law.

Evaluating those arguments is a familiar judicial exercise.

For these reasons we hold that the lower courts should not have avoided deciding this case because in their view it presented a political question.

Given that error, the lower courts never reached the merits of Zivotofsky's claim.

We generally do not decide questions that were not decided below.

We, therefore, send the case back to the lower courts to exercise jurisdiction and to decide the merits of Zivotofsky's claim in the first instance.

Justice Sotomayor has filed and opinion concurring in part and concurring in the judgment in which Justice Breyer joined as to part one.

Justice Alito has filed an opinion concurring in the judgment.

Justice Breyer has filed a dissenting opinion.