I wrote yesterday why Congress may have the better of the separation of powers arguments in Zivotofsky v. Kerry. But I think there is also a reasonable argument that the case falls outside of the courts’ Art. III jurisdiction – and not because it poses a political question.
Rather, I think the argument for standing is thin – though I say this tentatively, as standing doctrine is notoriously inconsistent in its application and vague in its requirements. The district court had originally dismissed on standing grounds when it first heard the case a decade ago, though not quite the ones I outline here. Thhe D.C. Circuit reversed, and the Supreme Court did not address the issue in its prior encounter with case two years ago.
The plaintiff, an American born in Jerusalem, is trying to litigate the country listed on his passport. To start with, the passport is not “his.” Rather, as it says on page five of my passport, it is “U.S GOVERNMENT PROPERTY… It must be be surrendered upon demand made by an authorized representative of the United States.” One generally does not have any legally cognizable interest in other people’s property that is not causing a nuisance, even if one is allowed to carry it around.
Of course, there is a statute involved, but it does not create a “right,” let alone a cause of action, to have Israel listed on one’s passport. Rather, it says that the State Department should only list “Israel” as a birthplace if the passport-holder so requests. That is, if anything, more about the rights of non-requesters as anything, or about the bureaucratic process for making passports. Oddly, the Court of Appeals, in reversing the standing dismissal, analogized the injury to denials of Freedom of Information Act requests. FOIA, however, specifically creates a detailed cause of action, which the passport measure does not.
There is no “injury” to Zivotofsky; he has not been deprived of any legal entitlement. Indeed, Congress’s law, given its context, was not about making American citizens in Jerusalem feel good, even if such a sentiment could give rise to an Art. III injury, which I doubt.
Imagine a government form that asked those filling it out to indicate if they were white, black or hispanic. Subsequently, in compiling this information, the government chooses to lump hispanics in with whites. I do not think the mere fact that that hispanics were involved in filling out the forms would give them standing to challenge what the government does with the information. The passport issue is also one about how the government classifies information provided by individuals.
Zivotosfky is using the contents of his passport to litigate an ideological injury – the Executive’s Alice in Wonderland policy of not saying Jerusalem is in Israel. Such policies affect not just the plaintiff, but the entire nation. Indeed, it affects him in ways not differentiable from the the U.S. as whole, whose passport it is.