Courts can decide whether the State Department can decline to follow Congress's statute allowing Americans born in Jerusalem to have their passports say "Israel."

The question is justiciable — it's not within the "political question doctrine" — says the Supreme Court today, in an opinion, Zivotofsky v. Clinton, written by Chief Justice Roberts. Roberts states the doctrine in the one-line form that Chief Justice Rehnquist used in Nixon v. United States (1993): Is there "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." (The language comes from the 1962 case Baker v. Carr, but Baker v. Carr phrases the doctrine in terms of 6 factors. The Nixon version refers only to the first 2.)

The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” 511 F. Supp. 2d, at 103. This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....

The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This 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. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.” INS v. Chadha, 462 U. S. 919, 943 (1983)....

Thus, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department." Are there "judicially discoverable and manageable standards"? It might seem so if you think the question is the political status of Jerusalem, the Chief writes, but the issue is whether the statute is constitutional: Can Congress interfere with the Executive and create the right that Zivotofsky now asserts? The answer may be no, but that's the answer on the substantive constitutional merits, not a determination that the courts may not reach the substantive merits. Reciting all the arguments for and against congressional power, Roberts reject the notion that they show why judges cannot answer the question:

Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do.

So the "political question" argument fails and the case returns to the D.C. Circuit court to get on to the substantive merits.

"The Case Against Referendums: From Greece to California, They Always End Up Undermining Democracy."

David Bell in TNR:

Modern states are far too large and complex for direct democracy. Since it would be hugely impractical for the people, as a whole, to decide on everything from the size of foreign aid budgets to new environmental regulations, they delegate the business of government to elected representatives....

[I]n practice bodies of elected representatives so often seem to devolve into corrupt, complacent and long-lasting oligarchies. Anger at the shenanigans of the political class has helped keep the old suspicions alive right down to the present day, and has led, in democracies across the world, to countless institutional schemes designed to keep elected representatives in check: “imperative mandates” (detailed orders for how to vote in parliament, drawn up and approved by constituents); term limits; making the job part-time; judicial oversight; etc. The single most popular such scheme, however, has been the referendum....

[But referendums] take relatively technical issues away from legislators who have the time and expertise to deal with them, and give them to voters who do not....

[Referendums] tie the hands of legislators in potentially destructive ways....

[R]eferendums tarnish the legitimacy of legislators by subjecting their work to direct popular veto, and therefore casting it as a less genuine expression of popular sovereignty—despite the fact that the routine functioning of a democratic constitution is the most important expression of this sovereignty.

By the way, the U.S. Constitution prescribes the specific method for legislating and amending the Constitution, and that excludes the referendum as a check on Congress, but there is also an argument that the state-level referendums violate the U.S. Constitution. In 1912, the U.S. Supreme Court announced that it was not the proper role of the courts to give an answer to that particular question of law, and referendums have continued ever since. What a missed opportunity!

"Were I representing Arizona, I’d argue that the federal government is in default on its 'protection against invasion' responsibility, and that this empowers the state to resort to self-help."

Says Glenn Reynolds, citing Article IV, Section 4 of the U.S. Constitution. ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.")

Not sure how that would play out, but it would make an interesting law review article. And a fun oral argument.

I'm pretty sure how it would play out. The courts would apply the political question doctrine and say that Article IV, Section 4 is a "textually demonstrable commitment" of the question to Congress and the Executive. It is for them and not the courts to say what constitutes an "invasion" and what protection is warranted. Even though it would not be a lawsuit against the federal government, attempting to get a court to compel it to act — it would only be a justification of the state's acting in its own defense — the courts would refuse to interpret and apply that provision of the Constitution.

UPDATE: Glenn fights back on the political question doctrine. He connects Article IV, Section 4 to Article I Sec. 10. ("No State shall... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.")

Arizona is not — yet, anyway — engaging in war, but it’s clear from this language that it’s constitutionally empowered to do so when invaded, even if the federal government does nothing (and perhaps even in the face of federal objection). Arizona’s legislation is passed in response to armed people coming across the border and killing Arizonans, which sounds rather like an invasion. If that’s the case, then lesser responses to invasion are, arguably, permissible as well in the face of federal inaction. What the courts will do with this is, of course, uncertain (and likely not tied very closely to the actual text of the Constitution!) but it’s certainly not a frivolous argument.

An immediate military response to a sudden invasion that "will not admit of delay" is clearly distinguishable from the long influx of migrants to which the state has responded with a stringent policy of requiring and checking papers and deporting people. Arizona has adopted its own immigration policy, because it doesn't like the policy the federal government is following. But the federal government has complete power over immigration. This "invasion" concept is offered as a work-around to that power.

I think that if the Arizona policy were challenged and Arizona argued it had suffered an invasion that the feds wouldn't deflect, that the courts would say: It's not for us to decide what constitutes an "invasion." Congress and the Executive have already made their decision about that, and the Constitution makes that the final answer. As they say in political question doctrine talk, there's "the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government... an unusual need for unquestioning adherence to a political decision already made... [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

At that point, the court would be back at the original barrier to the state's law: the exclusive federal power over immigration.

The Senate must seat Roland Burris.

Says Walter Dellinger, who was a Supreme Court law clerk (for Hugo Black) when the Supreme Court decided the Adam Clayton Powell Jr. case (Powell v. McCormack):

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

Dellinger notes that Blagojevich is the governor, he has the appointment power, and he has exercised it:

The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.

Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.

The idea of delaying and giving the Illinois legislature a chance to impeach Blagojevich makes no sense, because Burris has been validly appointed, so he's in until the term is up in 2010.

There is still a separate question whether Burris can get into court (as I noted last Thursday). Dellinger says:

The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.

But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less.

Exactly. When the court finds a case nonjusticiable under the political question doctrine, it is because it reads the Constitution as committing a particular constitutional question to one of the political branches of government. It is decidedly different from rejecting a Constitution-based claim on the merits. It is saying that some other branch of government is the final authority on the meaning of a part of the Constitution, and that indeed means that the nonjudicial branch that has this responsibility must look at the Constitution and figure out what it means and then follow it.

It absolutely does not mean that the other branch can simply carry out its political will.... something you'd never guess from watching Harry Reid.

The Senate has the power to exclude Roland Burris, say lawprofs Akhil Reed Amar and Josh Chafetz.

They look at Article I, Section 5 of the Constitution — which makes each house of Congress "the Judge of the Elections, Returns, and Qualifications of its own members" — and find a power to judge the Blagojevich appointment:

At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.

Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.

Amar and Chafetz need to deal with Powell v. McCormack, in which the Supreme Court said that the House did not have the power under Article I, Section 5 to refuse to seat Adam Clayton Powell. That case focuses on judging "qualifications," and the Court said that only relates to the qualifications specified in the Constitution — age, citizenship, and residency. Beyond those 3 qualifications, the people had the power to choose the representative they wanted. But Powell was clearly the people's choice, so what do you do with Powell when the governor appoints the new member? For an accurate analogy for the Burris appointment, imagine if the problem with Powell hadn't been that the members of Congress thought he was corrupt, but that they thought there had been a fraud in the election.

Now, the Powell case was about whether Powell could use the courts to override the decision to exclude him. The argument on the other side was that the House had the final call about the scope of the power to judge the qualifications of their own members. In that view, which the Court rejected, a vote to exclude already embodied the constitutional interpretation that they had the power. Our current discussion of the question of the scope of the power to exclude Burris will affect how the Senators think about the scope of their power, and articles like Amar and Chafetz's should embolden the Senators, and they may vote to exclude him. If that happens, Burris may sue in federal court, and then the court will have to decide whether the Senators' assessment of their own power is the final answer about the meaning of the Constitution.

But doubts about the scope of the Senate's power to look into the circumstances of the appointment may give the Senators pause. The vote to exclude Burris may fail — because of these constitutional doubts and for other reasons. If that happens, Burris will be seated and there will be no occasion for a court to discuss the scope of the exclusion power.

To be sure, there are plenty of other reasons to seat Burris. For one thing, if we rely on the theory that the Senators have the power to exclude him because the appointment process was corrupt, they will need to go through some sort of factfinding process. Blagojevich faces his criminal trial, but he is the duly elected governor of Illinois, with the power to appoint the Senator. What sort of parallel process in the Senate will be needed to make the exclusion legitimate?

In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption.

If the Senators exclude Burris because they simply feel quite certain the appointment is tainted and not because they've gone through some impressive and fair factfinding, when — if — Burris goes to court to override their decision, Burris's argument about the scope of the power to exclude will look much more appealing. The Senate will need to argue that the court should defer, but the court will think less of this notion of deference if the process to be deferred to is not very impressive. Amar and Chafetz recognize this reality of litigation:

To make sure its ruling sticks, the Senate should follow its own procedures with due deliberation. Burris' case can be referred to a committee for careful review. He need not be seated while this committee does its work, and it will be very hard for Burris to persuade any federal judge to interfere in the meantime, especially if Senate Democrats and Republicans unite. With any luck, Blagojevich will be out of office soon enough and a new appointments process (or a special election) can begin that would supersede the attempted Burris appointment.

The delay itself is effective, but it does mire the Senate in an investigation of the Democratic governor. The argument will be made that the effort to exclude is more of a power grab than the governor's attempt to fulfill what is, after all, a duty of his office. Should the Senate Democrats want that? What a nasty preoccupation for Congress at what should be the fresh beginning of a new administration!

Amar and Chafetz make a good argument about the power to exclude but in doing so, they expose the political disaster it would be to vote to exclude.

ADDED: Lawprof Sandy Levinson puts it well:

I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny....

Should the motives of Gov. Patterson [sic] be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?

That Texas redistricting case.

Here's Linda Greenhouse's report on the Texas redistricting case:

With only Justice Anthony M. Kennedy joining both parts of the decision, the court looked in two directions..., rejecting the statewide gerrymandering claim brought by Democrats and other plaintiffs while accepting the Voting Rights Act challenge in southwestern Texas, brought by the Mexican American Legal Defense and Educational Fund. The case produced six separate opinions, a total of 123 pages.

That's half of the reason why I did not read and summarize the case for you when it came out yesterday. It's not just that the case is long and fractured. It's that it fails to do anything to clear up the utterly confused standard to be applied in claims of unconstitutional gerrymandering and adds nothing new to the analysis of whether courts should entirely refuse to entertain such claims (by applying the so-called "political question doctrine"). I note that the two new Justices offer nothing new. Here's Chief Justice Roberts, joined by Justice Alito:

... I agree with the determination that appellants have not provided “a reliable standard for identifying unconstitutional political gerrymanders.” The question whether any such standard exists — that is, whether a challenge to a political gerrymander presents a justiciable case or controversy—has not been argued in these cases. I therefore take no position on that question, which has divided the Court, see Vieth v. Jubelirer, 541 U. S. 267 (2004)...

I'll be interested when they do take a position on this issue (which I tormented my students with on the last conlaw exam). Roberts and Alito replaced two Justices who agreed with Thomas and Scalia that political gerrymandering is not justiciable, and Justice Kennedy is holding down a middle position that is keeping the law in this area exceedingly unclear. The outcome in the new case is important, and it affects significant political interests. But as an expression of law it is highly unsatisfying.

Three signs.

Today started out lively with a two-hour class about the political question doctrine--with a room assignment screw-up to cut the seriousness of it all at midpoint. Then things got dreary as I spent the next three hours looking for some old letters that could either be in any one of the many places in my office where I engage in my real world paper filing practices (piling things on horizontal surfaces) or in one of the several computers in my office. I did find some of what I was looking for and got two side benefits: 1. my office became incredibly neat, and 2. our tech guy hooked my second-newest desktop unit, whose monitor had died, to my newest desktop. It's now easy to reach back into the documents and emails of the years 1999-2002 that didn't seem important enough to transfer to my newest computer when I first set it up. It's a little like going up into the attic and rooting around in the papers up there.



(Actually, I haven't gone into my attic in many years, even though all it takes is opening a door and walking up an ordinary staircase. I used to find a bat flying around my house from time to time. The insane hijinks that took place when we used to try to capture one of these creatures would take several pages to describe. Let's just say rabies shots were involved! Finally, I had a bat guy--a bat man--out to the house to solve the problem, which he did. I came to understand that the attic was the source of the problem, and I haven't gone up there since, even though there aren't any bats up there anymore.)



But the point is: I haven't found today very conducive to blogging, so let me photoblog. Here are three signs: a paper poster (for Cinematheque--the UW's film series), a classic neon bar sign, and a nice example of the home-style painted-on type.

The semester has ended. It's a beautiful day and the last class is over. Time now to write exams and tie up all the many loose ends and do all the errands that I've been putting off (like having the oil changed in my car). But first, I'll take a walk down State Street, perhaps capturing some photos of Madison happenings. I'm going to make my way to a restaurant, where I plan to read the new Supreme Court case about political gerrymandering. (Ah, a new Supreme Court case on the political question doctrine comes out just as it is too late to talk about it in Conlaw 1!) Then I mean to go to a café and do a little photoblogging (if, in fact, Madison happenings were captured) and a little blawging (if I can extract a distinctive thing to say about the Justice Scalia/Justice Kennedy stand-off that left us with only a plurality opinion about the political question doctrine). So do come back. I'd like to also listen to the oral argument in the Cheney case, the one that bored all the reporters because there was too much talk about federal jurisdiction, but that will take a little time. There are also the arguments about habeas corpus in the Padilla and Hamdi cases to listen to. I almost regret that the Federal Jurisdiction and Conlaw 1 classes have already ended, just as so many interesting things are happening in the Supreme Court. Yet something tells me that this close to exams, students are not inclined to find anything "interesting," just burdensome. The lot of being a lawprof is often a matter of becoming immensely interested in things students are sorry to find out they need to slog through at all. But there are always some students who really do see what is interesting and important inside the arcana of jurisdiction and federalism and separation of powers. (If only when reading admissions files I could figure out who's who!)