A divided U.S. Court of Appeals for the D.C. Circuit this week declined full-court review in a dispute about a boy's passport, leaving one senior judge frustrated and concerned the court denied the rehearing for mere convenience's sake.
The full court decided 6-3 on June 29 not to rehear a dispute over whether the U.S. State Department can decline to stamp “Israel” as the place of birth on a passport for an American citizen born in Jerusalem. The parents of Menachem Zivotofsky sued when the government refused their request.
That suit was dismissed by the lower court, and a three-judge D.C. Circuit panel affirmed in July 2009 on the ground that the dispute raised a political question, which the court may not answer. Now, the full court has passed on taking up the case. And that’s left Senior Judge Harry Edwards miffed. (Edwards did not vote on whether to hear the case en banc. Only active judges can participate in en banc votes.)
The United States does not recognize any one country or political body as having sovereignty over Jerusalem. Still, a provision passed in 2002 as part of the Foreign Relations Authorization Act says an American citizen born in Jerusalem can have Israel designated as the birth country. President George W. Bush in a signing statement said that provision interferes with the executive’s foreign affairs authority.
Edwards was part of the panel that upheld the dismissal of the suit last year. But he disagreed with his colleagues, Judge Thomas Griffith and Senior Judge Stephen Williams, on the application of the political question doctrine. Edwards said the doctrine has no place in the suit.
This week, Edwards expressed dismay that the full court declined to hear the case en banc. (Judges Douglas Ginsburg, Judith Rogers and Brett Kavanaugh voted in favor of having a second look.) Edwards said the court is making a "serious mistake" in not taking up the case.
“This case raises an extraordinarily important question that should have been reheard en banc by this court,” Edwards wrote in a seven-page statement that accompanied the court’s order denying en banc review. “The inconvenience of en banc review is no justification for its denial in a case of this importance.”
Edwards said the suit is about “commonplace issues of statutory and constitutional interpretation, and they are plainly matters for the court to decide.” Edwards, who noted the Zivotofskys will likely lose on the merits, said the case is one rooted in separation of powers.
“The Zivotofskys’ claim … does not require the court to evaluate the wisdom of the Executive’s foreign affairs decisions or to determine the political status of Jerusalem,” Edwards wrote. “The court’s role in this case is to determine the constitutionality of a congressional enactment. And this role is well within the constitutional authority of the judiciary.”
Nathan Lewin of Washington’s Lewin & Lewin, the attorney for the Zivotofsky family, said he is weighing whether to file a petition for a writ of certiorari at the U.S. Supreme Court. Lewin said the plaintiffs are asking the government to enforce a statute, not to rule on the status of Jerusalem.