Zivotofsky v. Kerry
576 U.S. ____ (2015) (2015)
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Rule of Law:
The President has the exclusive power to recognize foreign sovereigns and their territorial bounds, which prevents Congress from enacting legislation that compels the Executive Branch to contradict an earlier recognition determination in official documents like passports.
Facts:
- The U.S. Executive Branch has maintained a longstanding policy of not recognizing any country as having sovereignty over Jerusalem, believing its status should be decided through consultation.
- The State Department's Foreign Affairs Manual (FAM) generally instructed officials to record a person's place of birth on a passport as the country having present sovereignty over that area.
- If the U.S. did not recognize a sovereign over the birthplace, or if a citizen objected to the listed sovereign, the FAM allowed listing only the city or town of birth, such as "Jerusalem."
- Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 to United States citizens.
- In December 2002, Zivotofsky’s mother requested that his place of birth be listed as "Jerusalem, Israel" on his passport and consular report of birth abroad.
- American Embassy officials refused, stating that, pursuant to State Department policy, his passport would list only "Jerusalem."
Procedural Posture:
- Zivotofsky’s parents brought suit on his behalf in the United States District Court for the District of Columbia, seeking to enforce §214(d).
- The District Court dismissed the case, reasoning that it presented a nonjusticiable political question and that Zivotofsky lacked standing.
- The Court of Appeals for the District of Columbia Circuit reversed the District Court's ruling on the standing issue, allowing the case to proceed.
- The D.C. Circuit later affirmed the District Court's political question determination, holding the issue nonjusticiable.
- The Supreme Court granted certiorari, vacated the D.C. Circuit's judgment, and remanded, holding that the constitutionality of §214(d) was not a political question.
- On remand, the Court of Appeals held the statute unconstitutional, determining that the President exclusively holds the power to recognize foreign sovereigns and that §214(d) directly contradicted this Executive Branch power.
- The Supreme Court again granted certiorari to review the D.C. Circuit's decision.
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Issue:
Does Congress have the constitutional authority to compel the Secretary of State, upon a citizen's request, to record the place of birth as "Israel" on a U.S. passport for a citizen born in Jerusalem, when the Executive Branch does not formally recognize Israel's sovereignty over Jerusalem?
Opinions:
Majority - justice Kennedy
No, Congress does not have the constitutional authority to compel the Secretary of State to record a U.S. citizen's place of birth as "Israel" on a passport when the Executive Branch does not formally recognize Israel's sovereignty over Jerusalem. The Constitution's text and structure, particularly the Reception Clause (Art. II, §3), supported by historical practice and precedent, grant the President the exclusive power to recognize foreign nations and governments, including their territorial boundaries. This power is reinforced by the President's authority to negotiate treaties and appoint ambassadors. Functional considerations further mandate that the Nation must "speak with one voice" on matters of recognition, a unity characteristic of the Executive. When the President acts in direct opposition to Congress's expressed will, he must rely solely on exclusive and conclusive constitutional powers. Section 214(d) directly infringes on this exclusive presidential power by forcing the Executive, through the Secretary of State, to issue an official document (a passport) that contradicts the Executive's consistent policy of withholding recognition of any country's sovereignty over Jerusalem. Allowing Congress to compel such a statement would effectively allow Congress to exercise the recognition power itself. While Congress possesses broad authority over foreign affairs and passports, it cannot use this authority to aggrandize its power at the expense of another branch by mandating the President to contradict his recognition determinations in official executive documents.
Concurring - justice Breyer
The case presents a nonjusticiable political question, but given the Court's precedent to resolve the merits, the majority's conclusion is consistent with that framework. Justice Breyer reiterated his belief from Zivotofsky v. Clinton (2012) that the case should have been dismissed on political question grounds, as it involves a dispute between political branches not suitable for judicial resolution. However, acknowledging that the Supreme Court had previously ruled against that position and remanded the case for a decision on the merits, he joined the majority opinion, accepting that precedent precluded a political question disposition.
Concurring in judgment in part and dissenting in part - justice Thomas
No, Congress cannot compel the Secretary of State to record "Israel" on passports, but yes, it can for consular reports of birth abroad. Justice Thomas argued that the Constitution's Article II Vesting Clause grants the President residual foreign affairs powers, which include the historical authority to regulate passports. Section 214(d)'s passport directive is not a proper exercise of Congress's enumerated powers (such as Commerce or Naturalization) or the Necessary and Proper Clause, because it dictates how the President must exercise his exclusive passport power, and the President objects. Therefore, the passport provision is unconstitutional. However, consular reports of birth abroad are historically and functionally linked to Congress's enumerated power to "establish an uniform Rule of Naturalization" (Art. I, §8, cl. 4) and the Necessary and Proper Clause. Regulating these reports is a proper means for Congress to carry out its naturalization power. Furthermore, listing "Israel" on such a report does not constitute a formal act of international recognition, as the U.S. already recognizes Israel as a state, and thus does not infringe upon the President's recognition power. Therefore, Congress's mandate regarding consular reports of birth abroad is constitutional.
Dissenting - chief justice Roberts
Yes, Congress has the constitutional authority to compel the Secretary of State to record "Israel" on passports because the statute does not implicate the President’s recognition power. Chief Justice Roberts argued that the majority's decision represents an unprecedented acceptance of presidential defiance of an Act of Congress in foreign affairs, where the President's power is at its "lowest ebb" when contradicting legislative will. He expressed significant doubt that the Constitution grants the President exclusive and preclusive recognition power, noting that the Reception Clause is an obligation, not a discretionary power, and other foreign affairs powers are shared with Congress. Even if such an exclusive power existed, Section 214(d) does not involve formal recognition; it merely provides a citizen the option to designate their birthplace. The State Department itself views this as an "identification" function, not a recognition act. Allowing foreign perceptions to dictate the constitutionality of a U.S. statute amounts to an "international heckler's veto." Congress's broad foreign affairs powers allow it to enact such a law without infringing on any exclusive presidential recognition authority.
Dissenting - justice Scalia
Yes, Congress has the constitutional authority to compel the Secretary of State to record "Israel" on passports because the statute is based on Congress's enumerated powers and does not concern recognition. Justice Scalia argued that the Constitution divides foreign affairs responsibilities, granting Congress substantial powers, including the power to "establish an uniform Rule of Naturalization" (Art. I, §8, cl. 4) and, via the Necessary and Proper Clause, to provide citizenship documents and specify their contents. Section 214(d) is merely a birthplace specification, a "geographic description," which is not a formal act of international "recognition" with legal effects. Recognition requires an unequivocal manifestation of intent to accept international status, which an optional passport designation does not provide. Congress has historically expressed its views on foreign sovereignty and territory through legislation without constitutional objection. The majority's creation of an "ancillary exclusive power" for the President over "formal statements" is a "gerrymandered" and incoherent theory that lacks support in constitutional text, history, or precedent, and it wrongly elevates implied presidential power over express congressional power. The Constitution allows Congress to contradict the President's policies on such matters.
Analysis:
This case significantly clarifies the allocation of foreign affairs powers between the President and Congress, establishing that the President holds exclusive authority over formal recognition of foreign states and their territorial bounds. It limits Congress's ability to legislatively compel the Executive to make official statements that contradict these recognition decisions. The ruling reinforces the President's role as the "sole organ" for formal recognition, setting a precedent that impacts future legislative attempts to influence foreign policy through symbolic or declarative laws touching on recognition, even if such laws might seem minor in scope. This framework is crucial for understanding the boundaries of interbranch power in sensitive international relations.
