Supreme Court Update: Zivotofsky v. Clinton (10-699) and Vartelas v. Holder (10-1211)

March 29, 2012 Supreme Court Update

Greetings, Court fans!

The Justices apparently have no trouble multi-tasking, issuing 5 decisions and an order list this week, all while hearing the longest and most-watched arguments of the Term (and the possibly the decade) regarding the Patient Protection and Affordable Care Act (PPACA). Monday brought technical arguments about whether the Anti-Injunction Act prohibits a challenge to PPACA until its individual mandate and accompanying penalty/tax goes into effect in 2014; Tuesday was the heart of the matter, with the parties arguing over the constitutionality of the individual mandate; and the Court wrapped things up yesterday with argument over both severability (i.e., will the whole law fall if the individual mandate does?) and whether PPACA would improperly "coerce" states to expand their share of Medicaid costs. All in all, it was an exciting week.

Turning to the decisions, this Update will cover Zivotofsky v. Clinton (10-699), on when courts should decline to decide a case under the political question doctrine, and Vartelas v. Holder (10-1211), addressing whether lawful permanent residents convicted before IIRIRA's passage can travel briefly outside the country without jeopardizing their resident alien status.

While Zivotofsky v. Clinton (10-699) yielded four opinions (and some odd bedfellows), it turned out to be a surprisingly non-political decision. Of course, it's easier to be non-political when you're addressing only "whether to decide," and not actually "deciding" – which is just what the Court did. Petitioner Menachem Binyamin Zivotofsky was born in Jerusalem in 2002. Earlier that year, Congress had passed a law entitled "United States Policy with Respect to Jerusalem as the Capital of Israel," which in § 214(d) stated that "for purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel." This law attempted to override the State Department's policy, which refused to take a position on the status of Jerusalem and specifically instructed passport officials to enter only "Jerusalem" and "not write Israel or Jordan" as the birthplace of a person born in Jerusalem. Pursuant to § 214(d), Zivotofsky's parents requested that his birthplace be listed as "Jerusalem, Israel." The State Department refused. When Zivotofsky sued to enforce his rights under § 214(d), the State Department asked the district court to dismiss the case on the basis of the political question doctrine, arguing that the Constitution gave the Executive branch exclusive jurisdiction to determine whether to recognize a foreign power and the courts should not wade into this political issue. The district court agreed, believing that deciding the case would require it to take "a position on the status of Jerusalem." The district court also found that Zivotofsky lacked standing to sue. The D.C. Circuit reversed on the standing issue and also narrowed the legal issue to whether Zivotofsky was entitled to have his birthplace listed as "Israel." On remand, the district court once again found the case non-justiciable and the D.C. Circuit affirmed. Judge Edwards concurred in the dismissal, but on different grounds. In his view, the political question doctrine had no application to the case, but he found § 214(d) an unconstitutional intrusion into the Executive's exclusive recognition authority. Accordingly, he would have dismissed Zivotofsky's claim for lack of a viable cause of action.

The Court agreed in part with Judge Edwards, in an opinion by the Chief, who was joined by Justices Scalia, Kennedy, Thomas, Ginsburg and Kagan. The issue before the district court did not require the court to decide the status of Jerusalem, but instead asked only whether Zivotofsky had a statutory right to have his birthplace recorded as Israel. The statute was unambiguous – so the only question remaining was whether § 214(d) was unconstitutional in light of the authority conferred on the Executive by the Constitution. The political question doctrine requires dismissal where there is "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." Here, the question was the constitutionality of a statute. That was not an issue committed to another branch of government – but to the courts themselves, and one that was "a familiar judicial exercise." While the issue may be a difficult one with political ramifications, that is no basis for the courts to avoid it.

Justice Sotomayor concurred in part and in the judgment. While she largely agreed with the majority's reasoning, she felt that it inadequately described the circumstances under which the political question doctrine may apply. (Justice Breyer joined her on this point.) In particular, she believed that there was a third group of circumstances, recognized in Baker v. Carr (1962), that could, under very rare circumstances, warrant dismissal based on the doctrine. That is where judicial intervention "risks ‘embarrassment from multifarious pronouncements by various departments on one question,' would express a ‘lack of the respect due coordinate braches of government,' or because there exists an ‘unusual need for unquestioning adherence to a political decision already made.'" Justice Sotomayor also stressed that there may be a situation where addressing a statute could raise a political question. However, here, the D.C. Circuit inappropriately relied on the fact that the issue was "textually committed" to the Executive Branch. This was error since the constitutionality of a statute is clearly within the province of the courts. Accordingly, Justice Sotomayor concurred with the majority's decision to reverse the Court of Appeals.

Justice Alito concurred in the judgment only. Like Justice Sotomayor, he emphasized that determining the constitutionality of a statute might present a political question. However, he "did not think that the narrow question presented here falls within that category." In his view, both Congress and the President have some authority with respect to the contents of passports. While the "precise dividing line" between those powers "is not an easy matter," Alito agreed with the Court that it did not constitute a political question.

Justice Breyer penned the lone dissent. He concurred with Justice Sotomayor in her explication of the other circumstances in which "prudence may counsel against a court's resolution of an issue presented." While he acknowledged that such situations were rare, he felt the present situation was among them. The status of Jerusalem involves the delicate subject of foreign affairs, where it is particularly important for the United States to speak with one voice. Even deciding the issue may require the courts to evaluate the implications of foreign policy choices as to which courts lack capacity. Further, in Breyer's view, the countervailing interests in obtaining judicial resolution of the issue are just not that strong. Zivotofsky will not suffer a great harm if he must wander the world with a passport that says only Jerusalem.

Next, in Vartelas v. Holder (10-1211), the Court considered whether the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) subjects lawful permanent residents convicted of a felony prior to IIRIRA's passage to potential removal if they travel briefly abroad. Vartelas, a native of Greece, became a lawful permanent resident in 1989. In 1994, he pleaded guilty to conspiring to make a counterfeit security, a felony, and served four months in prison. Thereafter, he returned to life as usual, which included periodic visits to his family in Greece. Prior to IIRIRA, U.S. immigration law employed two different structures – deportation hearings for excludable aliens who had already entered the country, and exclusion hearings for those seeking "entry" to the country. In Rosenberg v. Fleuti (1963), the Court held that an "innocent, casual, and brief excursion . . . outside the country's borders" by a lawful permanent resident did not constitute an "entry." Therefore, a lawful permanent resident who left the country for a vacation and returned could not be subject to exclusion proceedings. This issue has significant importance because the list of criminal offenses that make an alien deportable is different from the list of offenses that make an alien excludable. Thus, an alien who might not be allowed to enter the country may nevertheless be allowed to remain here indefinitely. Such was Vartelas's situation. His conviction for a single crime involving moral turpitude rendered him excludable, but not deportable. So, under the law as it existed prior to IIRIRA, Vartelas could remain in the United States indefinitely and, under Fleuti, he could travel freely to visit his family and friends in Greece.

IIRIRA, however, changed things. It abolished the distinction between exclusion and deportation proceedings and created a single "removal proceeding," where the critical event was "admission." The Board of Immigration Appeals (BIA) had determined that "admission," unlike "entry," had no exception for brief travels abroad by a lawful permanent resident. Thus, in 2003, when Vartelas returned from a trip to Greece, an Immigration officer classified him as an alien seeking "admission." His attorneys initially conceded removability, but requested discretionary relief, which was denied. Later, Vartelas sought to withdraw his concession, arguing that IIRIRA's new "admission" provision did not apply to his pre-IIRIRA conviction. The BIA denied the motion and the Second Circuit affirmed.

The Court reversed 6-3, with Justice Ginsburg authoring the majority opinion, joined by the other "liberal" Justices, as well as the Chief and Justice Kennedy. Under IIRIRA, lawful permanent residents are considered to be seeking "admission" to the country if, among other things, they enter the United States and have previously committed certain specified offenses, including "an offense involving moral turpitude." Prior to IIRIRA, under the Fleuti doctrine, lawful permanent residents could take brief trips abroad and return without applying for admission to the United States. Thus, IIRIRA imposes "a new disability" (i.e., the inability to travel/potential denial of reentry) "in respect to past events" (i.e., the pre-IIRIRA offense and conviction). In the Court's view, applying IIRIRA's new "admission" provision to Vartelas, whose conviction pre-dated the law, would be a retroactive application of the law. In light of the "deeply-rooted presumption against retroactivity" and the law's silence on the subject, the Court declined to do so.

Justice Scalia, joined by Justices Thomas and Alito dissented. In their view, IIRIRA's "admission" provision is not retroactive at all. While the law affects a class of aliens that engaged in past crimes, it regulates the present act of entering the United States – which occurred years after IIRIRA's passage – not the prior criminal conduct. The majority muddied the waters by confusing the statutory interpretation question (i.e., whether the law on its face applies to someone like Vartelas) with the validity question (i.e., whether Congress could validly impose the sanction of removal on a lawful permanent resident like Vartelas who previously committed a felony and has chosen to leave the country and then return). In the dissent's view, the statute facially applied to Vartelas, and even Vartelas did not argue that the statute would be invalid if Congress had intended it to apply to his conduct. Instead of adopting a simple retroactivity test based on the timing of the conduct actually regulated (Vartelas's entry into the United States), the majority created a new standard, under which a statute will be deemed retroactive if it creates "new-disabilities-not-designed-to-guard-against-future-danger-and-also lacking-a-prospective-thrust." (At least Scalia adds humor to our otherwise dry legal existences.)

We'll be back with additional decisions soon. Until then, thanks for reading!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400