Supreme Court half-answers Jerusalem passport question (POLITICO) By JOSH GERSTEIN / BLOG 03/26/12)
The Supreme Court declined to issue a definitive ruling Monday in a
longstanding dispute about whether U.S. passports for citizens born
in Jerusalem should, upon request, identify the place of birth as
However, the justices ruled, 8-1, that the lower courts erred when
they refused to weigh in on the case after deeming that it raised
a "political question."
Only six justices joined in the court´s majority opinion, which held
that the "political question doctrine" does not apply where a statute
conveys a clear right to individuals and the disagreement between
Congress and the Executive Branch presents questions of the sort
judges can readily address.
"Resolution of [the] 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," Chief Justice
John Roberts wrote in an opinion announced just before the high court
opened the first of three days of arguments on the new universal
health care law.
The State Department, under the administrations of President George
W. Bush and then President Barack Obama, refused to comply with the
statute, saying it intruded on the president´s prerogative to make
The Supreme Court´s decision effectively returned the case to a
district court for further action. However, the majority opinion
appeared to suggest, but did not say outright, that the plaintiff in
the case, Benjamin Zivotofsky, had the better argument. Roberts´s
opinion indicated that any court ruling on what passports say
shouldn´t be seen as a definitive pronouncement on U.S. foreign
"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...to choose to have Israel recorded on
his passport as his place of birth," Roberts wrote.
Justice Stephen Breyer said he would have upheld the invocation of
the "political question doctrine" by the U.S. Court of Appeals for
the D.C. Circuit.
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