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Constitutional Law — political questions

By: WISCONSIN LAW JOURNAL STAFF//March 26, 2012//

Constitutional Law — political questions

By: WISCONSIN LAW JOURNAL STAFF//March 26, 2012//

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U.S. Supreme Court

Civil

Constitutional Law — political questions

Whether a person born in Jerusalem may list “Israel” on his passport as his place of birth is not a political question that courts must refrain from answering.

This Court has said 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. The lower courts ruled that this case presents such a political question because they misunderstood the issue, assuming resolution of Zivotofsky’s claim would require the Judiciary to define U. S. policy regarding the status of Jerusalem. In fact, this case asks the courts to determine only whether Zivotofsky can vindicate his statutory right under §214(d) to choose to have Israel recorded as his place of birth on his passport. Making such determinations 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. There is no “textually demonstrable constitutional commitment” of that question to another branch: At least since Marbury v. Madison, 1 Cranch 137, this Court has recognized that it is “emphatically the province and duty” of the Judiciary to determine the constitutionality of a statute. Nor is there “a lack of judicially discoverable and manageable standards for resolving” the question: Both parties offer detailed legal arguments concerning whether the textual, structural, and historical evidence supports a determination that §214(d) is constitutional.

571 F. 3d 1227, vacated and remanded.

10-699 Zivitofsky v. Clinton

Roberts, C. J.; Sotomayor, J., concurring in part and concurring in the judgment; Alito, J., concurring in the judgment; Breyer, J., dissenting.

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