Zivotofsky v. Clinton

Facts of the Case

Petitioner Menachem Binyamin Zivotofsky was born in Jerusalem. His mother requested that Zivotofsky’s place of birth be listed as “Israel” on a consular report of birth abroad and on his passport, pursuant to the Foreign Relations Authorization Act. The statute provides that, for 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. Notwithstanding the existence of a legal basis for the petitioner’s request, the U.S. officials refused, citing a State Department policy that prohibited recording “Israel” as the place of birth for those born in Jerusalem. Subsequently, Zivotofsky’s parents filed a suit on his behalf against the Secretary of State. The District Court dismissed the case, holding that it presented a non-justiciable political question regarding Jerusalem’s political status. The D.C. Circuit affirmed, reasoning that the Constitution gave the Executive the exclusive power to recognize foreign sovereigns, and that the exercise of that power cannot be reviewed by the courts.


Does the political question doctrine deprive a federal court of jurisdiction to enforce a federal statute that explicitly directs the Secretary of State how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport?


No. In an 8-to-1 decision, Chief Justice John G. Roberts, Jr. delivered the opinion of the Court vacating the judgment and remanding the case to the trial court for further consideration on the merits. Roberts argued that Zivotofsky’s claim did not involve a political question and is thus justiciable. Resolution of Zivotofsky’s claim would require the Judiciary to vindicate Zivotofsky’s statutory rights, a matter within its competence to resolve. Reaching a decision is not simple, however. A full airing on the merits will frame the issues for further review.Justice Sonia Sotomayor filed an opinion concurring in the judgment. Justice Stephen Breyer joined Part I of Justice Sonia Sotomayor’s opinion. She wrote separately to emphasize that the inquiry required by the political question doctrine was more demanding than the majority suggested with its opinion.Justice Samuel A. Alito, Jr. filed a special concurrence. He noted that determining the constitutionality of an Act of Congress could present a political question, but he did not think that the narrow issue before the court fell into that category of cases.Justice Stephen G. Breyer filed a dissenting opinion. He wrote that a decision would touch upon several very sensitive foreign policy matters and that adjudication of the petitioner’s claim would require the courts to answer a political question as defined by the Court’s decision in Baker v. Carr.

Case Information

  • Citation: 566 US _ (2012)
  • Granted: May 2, 2011
  • Argued: Nov 7, 2011
  • Decided Mar 26, 2012