Standing and Causes of Action in Zivotofsky

As a nerdy follow-on to Bob’s excellent guest post on the Zivotofsky case (which could prove to be the most significant foreign affairs case that the Supreme Court has heard in some time), I wanted to write a very quick response to my friend Eugene Kontorovich, who wrote a thoughtful piece yesterday over at the Volokh Conspiracy explaining why he doesn’t think the Zivotofskys have standing (and why the Supreme Court could therefore duck the messy separation-of-powers question on jurisdictional grounds).

The problem with Eugene’s argument is that, in my view, it conflates two distinct inquiries: whether the plaintiffs have standing, and whether the Act they are seeking to enforce provides a private cause of action. Although I agree with Eugene that the relevant statutory provisions fail to provide a private cause of action, I disagree that it fails to confer rights the invasion of which constitutes an “injury in fact” sufficient to create standing. This distinction is critical in two respects: First, insofar as the Zivotofskys are seeking declaratory and injunctive relief, it’s not at all clear that the absence of an express cause of action in section 214 would’ve been fatal in the district court. Second, and in any event, it’s irrelevant now; whereas the absence of standing is jurisdictional (and so would support dismissal at any point in the proceedings), the failure of the plaintiffs to state a cause of action is not jurisdictional, and is therefore waived as a defense if not raised by the parties below.

To understand this point, start with the actual text of the statute at issue in  Zivotosfky, section 214(d) of the Foreign Affairs Authorization Act for FY2003 (which Eugene omits from his post):

 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.

Eugene argues in his post that this language “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.” I couldn’t disagree more. The Act clearly creates an individual interest (held by “the citizen or the citizen’s legal guardian”) that is at least putatively mandatory (“the Secretary shall . . . record the place of birth as Israel”). Eugene then notes that the D.C. Circuit, in reversing the district court’s original dismissal for lack of standing, “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.” But this is conflating two distinct inquiries. Section 214(d) is clearly designed to confer a “right” on the part of a “requester” (or his/her guardian) to have the Secretary of State take specific administrative action. The provision says nothing about how such a right is enforced, but again, that goes to the cause of action, not the injury. It seems patently obvious that the Secretary’s refusal to list “Israel” on the minor Zivotofsky’s passport “injures” him, at least with respect to the entitlement provided by section 214(d).

Just to be clear, I have no real sympathy for Congress in this case, and have already suggested elsewhere that I think section 214(d) does overstep Congress’s substantive bounds, albeit on far narrower terms than those relied upon by the D.C. Circuit. But I don’t think there’s any question, as I’ve explained in the surveillance context, that Congress may create non-common-law rights as a general proposition, and then confer standing upon a wide array of private individuals who, through an appropriate cause of action, may enforce them. In this case, I think it’s clear that Congress created a right; the harder question is whether it needed to create a cause of action to support declaratory and injunctive relief. And whereas reasonable people may disagree about the answer to that question, it’s clearly beside the point at this stage, as the answer does not affect the Supreme Court’s power to resolve the merits. 

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Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).