U.S. Supreme Court

Supreme Court Rules Courts Have a Say-So on Passport Question


The U.S. Supreme Court has ruled 8-1 that federal courts have the authority to wade into a dispute over a federal law that says Americans born in Jerusalem can list Israel as their birthplace.

The political question doctrine doesn’t bar the courts from hearing the case, according to the majority opinion (PDF) by Chief Justice John G. Roberts Jr. But Roberts punted the case back to the lower courts to resolve the constitutional issue: whether the federal law infringes the president’s power.

The suit was filed on behalf of Menachem Binyamin Zivotofsky, who was born in Jerusalem in October 2002. Zitofsky’s parents had sought to enforce the law. The Obama administration, on the other hand, had argued that only the president has the power to set passport policy as part of his foreign affairs responsibilities.

A federal judge had dismissed the Zivotofsky suit, saying the political question could not be decided by the courts, and the U.S. Court of Appeals for the D.C. Circuit affirmed. Roberts disagreed in an opinion joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Elena Kagan. Two concurring justices agreed with the decision to reverse, while Justice Stephen G. Breyer dissented.

The courts are being asked to decide whether the statute is constitutional, “a familiar judicial excercise,” Roberts wrote. “The political question doctrine is not implicated.”

Administration lawyers had argued the president has the sole power to determine whether an American born in Jerusalem may list Israel as his birthplace. “But there is, of course, no exclusive commitment to the executive of the power to determine the constitutionality of a statute,” Roberts said. “The judicial branch appropriately exercises that authority.”

Prior coverage:

ABAJournal.com: “Presidential Power at Issue in Supreme Court Case on Passport Birthplace Listing”

ABAJournal.com: “Win Seems Likely for Obama Administration in Supreme Court Passport Case”

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