“Political Question” Abstention Is Easy As 1, 2…

Eugene Kontorovich makes an interesting point about Zivotofsky v. Kerry, a recent case where the petitioner is challenging a federal statute that recognizes people born in Jerusalem as being “born in Israel.”  Kontorovich is surprised that more foreign governments haven’t filed amicus briefs, since it involves recognition of a foreign sovereign:

If the government’s framing of the issue is correct, one would think Zivotofsky would occasion [amicus briefs from International stakeholders]. It ostensibly involves authority over recognizing sovereigns, with an underlying dispute about sovereignty over Jerusalem. If thus understood as being in part about sovereignty (which it should not be), one would think interested parties – the Palestinian National Authority, the Hashemite Kingdom, the Organization of Islamic States, or the Arab League, individually or collectively, would file an amicus brief insisting on their position. Indeed, the Executive’s assertions of negative foreign policy consequences seem fanciful given — ginned up to resist legitimate legislation that he (sort of) disagrees with — given that no foreign entity could be found to write an amicus brief.

Perhaps foreign countries understand that this is not actually a case about the international legal status of Jerusalem, but rather about technical internal arrangements of the U.S. government. Also, they may wish to not overstate the issue’s importance ex ante, in case Zivotofsky wins. In such an event, Arab states are unlikely to cry foul, because they would have to acknowledge that a major power recognizes Jerusalem as part of Israel. Rather, they would prefer to say the ruling means nothing about the status of Jerusalem, and will continue to hold up the Executive’s formal position as being that of the U.S. That way they can continue to claim that even the U.S. does not recognize Western Jerusalem as part of Israel.

I think that’s more or less correct.  But what I don’t understand is why this case wasn’t thrown in the Political Question Abstention pile. In Baker v. Carr, SCOTUS enumerated the factors to consider when deciding whether a case presents a nonjusticiable Political Question:

  1. A textually demonstrable constitutional commitment of the issue to a coordinate political department;
  2. A lack of judicially discoverable and manageable standards for resolving it;
  3. The impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion;
  4. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
  5. An unusual need for unquestioning adherence to a political decision already made;
  6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The District dismissed this case twice on Political Question grounds.  But that decision was vacated on appeal, and the lower appellate court sided with the Secretary of State on the merits.  I agree with the District Court judge, however: it seems clear to me that this case presents a Political Question when the above factors are considered. You’ve got a petitioner arguing that the Legislature can’t pass a statute that implicitly recognizes Israel, because only the Executive has the authority to recognize Israel. Here’s what the Baker Court wrote on the issue:

While recognition of foreign governments so strongly defies judicial treatment that, without executive recognition, a foreign state has been called “a republic of whose existence we know nothing,” [citation omitted] and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory, [citation omitted] once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area [citation omitted].  Similarly, recognition of belligerency abroad is an executive responsibility, but if the executive proclamations fall short of an explicit answer, a court may construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have become operative.

The problem here isn’t whether Congress or the Executive recognize the State of Israel—both clearly do.  The problem is whether Congress and the Executive both recognize Jerusalem as being part of the State of Israel.  The U.S. Government has a longstanding policy of neutrality towards Jerusalem.   However, as Lyle Denniston at SCOTUS blog writes:

Congress in 2002 passed a law ordering the State Department to allow U.S. citizens who were born in Jerusalem to record on their passports that Israel is their place of birth, but two presidents — George W. Bush and Barack Obama — have argued in response that the law encroaches deeply on presidential authority.

The Petitioner wants his Passport to say he was born in Israel, and is arguing (in essence) that Congress has the independent authority to recognize Jerusalem as part of Israel.  And therein lies the issue: the Petitioner is asking the Court to stand between Congress and the Executive, and decide who has the power to recognize the borders of foreign states and how.  That’s a big deal, and one fraught with political baggage.

The Baker Court seems to agree with Presidents Obama and Bush that recognizing foreign States is the responsibility of the Executive.  But as at least one Amicus Brief argued, the authority of the Executive to recognize Foreign Sovereigns is neither absolute nor uniquely located in the Executive.  It would be silly if the President could unilaterally define the recognized territory of a foreign State without at least consulting Congress, given the massive consequences that such an action could have for a Democracy.

This is in large part what makes this case so ripe for application of Political Question abstention.  Adjudicating this case could easily offend any number of the six factors laid out above.  As the Baker Court recognized, any matter involving the recognition of foreign States is an inherently political question.  To wit, the State Department stated in its Brief in Opposition:

In 1993, with the assistance of the United States, representatives of Israel and of the Palestinian people agreed that the status of Jerusalem is a core issue to be addressed bilaterally in permanent status negotiations.

The Petitioner is asking the federal Judiciary to wade into this political quagmire, and it doesn’t seem like a good idea for the Courts to get involved.  The only judicial opening I can see here is the one provided by the Baker Court, i.e. allowing the Justices to determine whether “statutes designed to assure American neutrality have become operative.”  The problem is that to do this, the Court needs to figure out whether sovereignty over Jerusalem has been “politically determined and declared.  “The Executive maintains a stance of neutrality, while Congress has passed a law implicitly recognizing Jerusalem as part of Israel.

So who does the Court look to in order to know if sovereignty over Jerusalem has been “politically determined and declared?”  Does it look to Congress?  Or to the President?  The Court would have to decide this question before examining “the resulting status [of Jerusalem] and decide independently whether a statute applies to that area.”  Meaning it has to choose which branch is correct.  That’s not a great position for a Court to be in, and seems primed to manifest the very types of risks that the Political Question Doctrine was created to avoid.

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