An Upcoming Case About Israel, Jerusalem, and Presidential Power Offers the Supreme Court the Chance to Clarify the Rules About “Political Questions”

In November, the Supreme Court will take up a case that raises thorny questions about the relationship between Congress and the President with respect to American foreign policy in the Middle East, and about the power of federal courts to weigh in on such matters in the first place.

The Background of the M.B.Z. Case

The case, M.B.Z. v. Clinton (Hillary Clinton, that is, in her capacity as Secretary of State), involves an effort by Menachem Zivotofsky, a U.S. citizen born in Jerusalem to U.S. parents, to have his U.S.-issued passport (and U.S.-issued Consular Report of Birth) indicate the place of birth as “Jerusalem, Israel.”  For many years, U.S. Presidents and U.S. State Departments (who issue passports and consular records) have scrupulously avoided taking an official position on the contentious question whether Jerusalem is a part of Israel.  Executive branch practice concerning the birth of U.S. citizens in Jerusalem follows this policy of neutrality, and consistently has been to record the place of birth of such citizens on U.S. documents simply as “Jerusalem,” without mention of any country.

In 2002, Congress passed a law that, among many other things, requires the Secretary of State, upon the request of a citizen or the citizen’s legal guardian, to record the place of birth for citizens born in the city of Jerusalem “as Israel.”  President Bush signed the law into effect, but (as he did from time to time) he issued a signing statement to disclaim the legal effect of part of the law he was signing, in this case because forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President’s constitutional power to formulate and speak on behalf of American foreign policy.  The plaintiffs in the M.B.Z. lawsuit seek to force the executive branch to follow the terms of Congress’s 2002 statute, notwithstanding the President’s signing-statement disclaimer.

The Holding of the U.S. Court of Appeals for the D.C. Circuit, and the Supreme Court’s Various Options in the Case

The United States Court of Appeals for the D.C. Circuit rejected the plaintiffs’ efforts, but not on the ground that the Secretary of State was acting permissibly in declining to follow the statute.  Instead, the D.C. Circuit held, the lawsuit presented a “political question” over which federal courts do not have the power to speak.  In other words, the court purported not to be exercising jurisdiction to resolve the lawsuit in the first place, saying instead that regardless of who is right and who is wrong under the law, this kind of matter is not susceptible of judicial resolution.

In particular, the two judges who made up the majority in the D.C. Circuit said this case presents an “issue [that] is textually committed [by the Constitution] to a political branch” of government, not the federal judiciary.  Therefore, this is a matter into which courts should not wade.  A third judge, Harry Edwards, also ruled against the M.B.Z. plaintiffs, but on a different ground.  Judge Edwards thought that, on the merits, the President and the Secretary of State had the constitutional authority to disregard the mandate in the 2002 statute, because, as President Bush had argued, the congressionally imposed mandate infringed on the President’s constitutional prerogative to recognize foreign countries and prosecute American foreign policy.

Now that the case is at the Supreme Court, the Justices have a number of options.  If, on the one hand, they disagree with the D.C. Circuit majority and conclude that the case is appropriate for judicial resolution, the Court could reach the merits.  And if it does reach the merits, the Court could say interesting things, both about presidential power and also about the efficacy of presidential attempts to sign bills into law but reserve the right not to follow parts of them.  Or, the high Court could simply remand the case to the D.C. Circuit for that court to consider the very questions regarding the merits of the case that the D.C. Circuit thought it should avoid.

If, on the other hand, the Supreme Court affirms the D.C. Circuit’s decision that the case presents a “political question” of the kind that courts should stay out of entirely, then the Justices certainly can provide some much-needed clarity about exactly what constitutes a “political question.”  In the remainder of this column, I focus on the murkiness of the “political question” concept and explain why—even if the Court has taken the M.B.Z. case only to refine “political question” doctrine—such refinement is necessary and helpful.

The Muddled State of “Political Question” Doctrine

Part of the problem surrounding so-called “political questions” is that the Supreme Court itself has been far from clear and consistent in its own prior teachings about what constitutes a “political question” and what follows when a “political question” is presented.  In its pure form, a “political question” requires that federal courts stay out of the matter altogether, meaning that they neither endorse nor call into question the legality of what the defendant is doing.  But staying out of the matter altogether is really just one endpoint on a spectrum of possible judicial involvement.  At the other endpoint are instances in which a court acknowledges that it is weighing in on the legality of the defendant’s actions, and deciding for itself—anew—whether the defendant acted lawfully, without giving the defendant any benefit of the doubt. (Lawyers call this de novo review.)

And in between these two polar extremes—staying out altogether, and weighing in without giving any deference to anybody else—are a number of middle positions, in which a court considers the legality of the defendant’s actions, but may grant varying amounts of deference to the defendant when the question of legality is one over which reasonable people can differ.  In such circumstances, the court may uphold—and validate—what the defendant has done, even if the court would construe the law differently than the defendant does, were the court acting on a clean slate.  We might call this option review on the merits, but with some deference.

One difficulty is that the Supreme Court sometimes acts and talks as if it is staying out of the matter altogether (which would be appropriate if the case presented a true “political question”), but in fact is really reviewing the matter on the merits with deference.  Take Nixon v. United States, one of the more recent and prominent cases in which the Supreme Court purported to apply political question doctrine and stay out of the matter entirely.  In that 1993 dispute, a federal Judge named Walter Nixon (no relation to President Nixon) was impeached by the House of Representatives and then convicted by the Senate for lying to a grand jury.  He claimed in the Supreme Court that the Senate didn’t properly “try” him, as the Constitution requires, because the whole Senate farmed out key fact-finding tasks to a Committee and then simply rubber-stamped the Committee’s findings.  The Senate responded in court that the question whether it acted properly during the impeachment/removal process was a “political question,” such that federal courts must abstain entirely.

The Supreme Court ruled for the Senate, and often sounded, in its opinion, as if it were staying out of the dispute altogether on account of a “political question.”  For example, the Justices wrote about how the Constitution’s framers gave impeachment trials to the Senate rather than to the federal courts on purpose, because the Senate is more accountable.

But one could argue that the Court didn’t really stay out of the matter entirely, and avoid speaking on the merits of Nixon’s claim that the Senate had acted unconstitutionally.  Instead, the Court opined that the word “try” in the Constitution (on which Nixon relied) is a broader term than Nixon contended, and what the Senate did could constitute a “trial” as that word is used in history and in the Constitution.  Just because the Senate utilized a committee to process evidence doesn’t mean the Senate didn’t conduct a trial; courts often use assistants—special masters, for example—to help process evidence.

As a concurring Justice pointed out, however, this really wasn’t staying out of the merits, but rather reviewing the merits with deference to the Senate.  If the Court really were committed to staying out altogether, then even if the Senate had conducted a trial by, say, merely flipping a coin, the Court would still have had to sit on the sideline.

Why Some Settings Really Do Present True Political Questions

There actually is a good argument for federal courts to stay out altogether when the Senate sits in impeachment cases—an argument, in other words, that however the Senate interprets the impeachment provisions, its interpretation is final and unreviewable by the courts.  But before we get to that possibility, we must first note that certainly Congress is not generally entitled to have federal courts refrain from reviewing its decisions.

For example, if Congress argued that the pending challenges to Obamacare present “political questions” over which courts cannot rule, Congress’s assertion would surely be rejected.  The key question (or at least one key question) that is presented by the Obamacare cases is exactly how far does Congress’s power to “regulate Commerce among the several states” go, and, relatedly, whether this power can extend to justify the congressional imposition of a mandate to purchase health insurance.  Surely Congress’s interpretation of its own Commerce Clause powers is not a final, unreviewable “political question” that courts must avoid evaluating.

What is needed, then, is a distinction, one that explains why the Senate’s constitutional interpretation in impeachment is uniquely committed to the Senate, whereas other kinds of constitutional interpretation by the Senate—such as its views on the constitutionality of legislation—are not uniquely committed to the Senate.  One possibly convincing answer is that the judicial nature of the clause in the Constitution that gives the Senate the sole power to try all cases of impeachments effectively ousts other courts of jurisdiction to review the Senate. To put the point another way, because the Senate sits as a court of impeachment, its judgments on all questions of law and fact should be respected in any subsequent judicial proceeding in another court.  Courts often stay out of matters when other courts have already ruled, even if the earlier ruling was completely wrong.

So it may well be that Supreme Court in Nixon would have been justified in staying out of the matter altogether, but the Justices never fully explained the key reason—the judicial nature of the language the Constitution uses to describe the impeachment processes—why this is so:  The Constitution “textually commits” impeachment to a court—the Senate, as a court—other than the federal courts.

Does the M.Z.B. Case Present a “Political Question”?

But perhaps because the Supreme Court itself hasn’t been clear, lower courts haven’t always been persuasive either.  Let’s go back to the M.B.Z. case.  In that dispute, the President’s power to recognize foreign governments and prosecute foreign power, while broad, certainly isn’t expressed by the Constitution in judicial terms.  The President doesn’t act as a court when he chooses which countries to recognize and how to conduct foreign affairs.  He acts as a President.

And just because the President says that a particular statute affects his recognition and foreign affairs powers doesn’t mean courts have to accept his assertion and stay out of the matter altogether.  For example, suppose the President alleged that the lawsuits challenging Obamacare infringe on his powers to prosecute foreign affairs because other countries have national health care laws and the U.S. needs such a policy as well for the President to be able to meaningfully negotiate with other nations. Courts would certainly not abstain from considering the constitutionality of Obamacare on that specious basis.

So, unlike the Senate’s role in impeachment, the President’s role in foreign affairs does not generally involve a “textual commitment” of a dispute to a branch other than the courts.  Still, there may be other good reasons for finding a “political question” to exist in M.B.Z.  The “textual commitment” idea is just one part of a cluster of theories that the Court and others have used to explain and justify judicial abstention in certain cases.

For example, the “unusual need for unquestioning adherence to a political decision already made,” or “the potentiality of embarrassment from multifarious pronouncements by various departments on one question”—other conditions that the Court has, in the past, indicated also generate “political questions”—might justify the federal courts’ staying out of the Israel/Jerusalem/passport question.  But such a decision would be specific to the political and historical facts surrounding this particular dispute, and making that point clear would be a useful thing for the Justices to do.