Zivotofsky v. Clinton - Post-Decision SCOTUScast

On March 26, 2012 the Supreme Court announced its decision in Zivotofsky v. Clinton (also known as M.B.Z. v. Clinton). This case presented two questions concerning U.S. citizens born in Jerusalem: (1) whether courts can enforce a federal statute directing the Secretary of State to, if requested, record the birthplace of such citizens on passports and consular reports as “Israel”; and (2) whether that statute improperly interferes with the President’s constitutional authority to recognize foreign sovereigns.  The lower appellate court dismissed the case on the grounds that these issues presented a nonjusticeable “political question.”

By a vote of 8-1 the Supreme Court vacated the appellate court’s decision and remanded the case for further proceedings.  In an opinion joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan, Chief Justice Roberts indicated that federal courts “are fully capable of determining whether [the] statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution.”  Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Breyer joined as to Part I.  Justice Alito filed an opinion concurring in the judgment, and Justice Breyer filed a dissenting opinion.

To discuss the case, we have John Elwood, who is a partner at Vinson & Elkins’s appellate group.

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