M.B.Z. v. Clinton
On November 7, in M.B.Z. v. Clinton, the Court will consider the intersection of the political question doctrine and separation of powers in a contentious area of foreign policy. At issue in the case is a 2002 law that requires State Department officials, when asked to do so, to designate “Israel” as the “place of birth” on the passport of a U.S. citizen born in Jerusalem. Until that time, State Department regulations had attempted to avoid the thorny classification dilemma by simply designating “Jerusalem” – rather than “Israel” or “Palestine” – as the place of birth on passports for any U.S. citizens born in that city.
The petitioner in the case, M.B.Z., was born in Jerusalem to U.S.-citizen parents in 2002. Although his parents asked the State Department to designate Israel as their son’s place of birth on his passport, it declined to do so despite Congress’s command to the contrary. When the parents took the issue to the courts, the U.S. Court of Appeals for the D.C. Circuit dismissed their claim on the ground that it raised a nonjusticiable political question: the court of appeals explained that the “judiciary has no authority to order the Executive Branch to change the nation’s foreign policy” with respect to whether Jerusalem is part of Israel.
The parents then asked the Supreme Court to take up the case, which it did last spring. In so doing, the Court added a second question for review: whether Congress’s enactment of the law itself impermissibly infringes upon the executive branch’s power to recognize foreign sovereigns. That the Court chose to do so may reveal the underlying views of some of the Justices on the matter: for the same reason that the D.C. Circuit believed that it was the prerogative of the executive branch to decide foreign policy free from judicial oversight, perhaps the same separation of powers principles doom the legislature’s initial imposition on executive authority. Today’s community discussion focuses on the merits of these two questions, and any other aspect of the case that you feel may be worthwhile.