Zivotofsky v. Clinton

PETITIONER:M. B. Z., By His Parents and Guardians Ari Z. Zivotofsky, et ux.
RESPONDENT:Hillary Rodham Clinton, Secretary of State

DOCKET NO.: 10-699
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 566 US (2012)
GRANTED: May 02, 2011
ARGUED: Nov 07, 2011
DECIDED: Mar 26, 2012

Donald B. Verrilli, Jr. – Solicitor General of the United States, for the respondents
Nathan Lewin – for the petitioner

Facts of the case

Menachem Binyamin Zivotofsky is a United States citizen born on October 17, 2002 in Jerusalem. In December 2002, Zivotofsky’s mother filed an application for a Consular Report of Birth Abroad and a United States passport for petitioner, listing his place of birth as “Jerusalem, Israel.” United States diplomatic officials informed petitioner’s mother that State Department policy required them to record “Jerusalem” as petitioner’s place of birth, which is how petitioner’s place of birth appears in the documents he received.

On his behalf, Zivotofsky’s parents filed this suit against the Secretary of State seeking an order compelling the State Department to identify petitioner’s place of birth as “Jerusalem, Israel” in the official documents. The United States District Court for the District of Columbia initially dismissed the complaint after concluding that petitioner lacked standing, and that the complaint raised a nonjusticiable political question. United States Court of Appeals for the D.C. Circuit reversed and remanded, concluding that petitioner had standing and that a more complete record was needed on the foreign policy implications of recording “Israel” as Zivotofsky’s place of birth.

On remand, the State Department explained, among other things, that in the present circumstances if “Israel” were to be recorded as the place of birth of a person born in Jerusalem, such “unilateral action” by the United States on one of the most sensitive issues in the negotiations between Israelis and Palestinians “would critically compromise” the United States’ ability to help further the Middle East peace process. The district court again dismissed on political question grounds. The court of appeals affirmed, holding that Zivotofsky’s claim is foreclosed because it raises a nonjusticiable political question.


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?

Media for Zivotofsky v. Clinton

Audio Transcription for Oral Argument – November 07, 2011 in Zivotofsky v. Clinton

Audio Transcription for Opinion Announcement – March 26, 2012 in Zivotofsky v. Clinton

John G. Roberts, Jr.:

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.