#12: Passports and Diplomacy

The Supreme Court’s decision in MBZ v. Clinton (2012) is an example of a three-way separation of powers battle. Amanda Frost over at SCOTUSblog summarizes the debate this way:

Federal law requires the Secretary of State to record the birthplace of an individual born in Jerusalem as “Israel,” which is at odds with State Department policy. The question for the Court in M.B.Z. v. Clinton … is whether that law interferes with the President’s constitutional authority to recognize foreign nations, and whether that dispute between the branches is a political question beyond the power of the courts to decide.”

More details can be found in this National Journal article.

The Court’s decision in MBZ v. Clinton (2012) did little to clear up the dispute between the executive branch and the legislative branch; however, it did assert the power of the judiciary to decide the dispute. Read Lyle Denniston’s astute commentary on the Court’s decision.

Paper Topic #12: As Lyle points out, the question remains as to whether Congress has the power to legislate about how a birthplace is listed on a passport. How will the lower courts answer this question? Is § 214(d) of the Foreign Relations Authorization Act constitutional? What implications will the decision have for striking a balance in this foreign policy separation of powers game?

Suggested Reading: Hand, A. (2012). Forbidden Territory or Well-Defined Boundaries-MBZV Clinton and the Overzealous Application of the Political Question Doctrine. Duke J. Const. L. & Pub. Pol’y Sidebar7, 61.

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