Zivotofsky v. Kerry
576 U. S. ____ (2015) (2015)
Rule of Law:
The President has the exclusive constitutional power to grant formal recognition to foreign sovereigns and their territorial boundaries. Congress may not enact a statute that requires the Executive Branch to issue a formal statement contradicting the President's official recognition policy.
Facts:
- In 2002, Menachem Binyamin Zivotofsky, a United States citizen, was born in Jerusalem to U.S. citizen parents.
- Shortly after his birth, Zivotofsky's mother applied for a U.S. passport for him at the American Embassy in Tel Aviv.
- She requested that his place of birth be listed as 'Israel,' in accordance with Section 214(d) of the Foreign Relations Authorization Act of 2003.
- The embassy official refused the request, citing a longstanding State Department policy to list only 'Jerusalem' as the place of birth for citizens born there.
- This State Department policy reflects the Executive Branch's official position of neutrality regarding the political status of Jerusalem, as no U.S. President has ever recognized any country's sovereignty over the city.
- Congress enacted Section 214(d) to permit citizens born in Jerusalem to have 'Israel' listed as their place of birth upon request.
- When signing the act, President George W. Bush issued a statement asserting that the provision, if mandatory, would unconstitutionally interfere with the President's exclusive authority in foreign relations.
Procedural Posture:
- Zivotofsky's guardians sued the Secretary of State in the U.S. District Court for the District of Columbia to enforce Section 214(d).
- The District Court dismissed the lawsuit, holding that it presented a nonjusticiable political question.
- The U.S. Court of Appeals for the D.C. Circuit affirmed the District Court's dismissal on political question grounds.
- In Zivotofsky v. Clinton, the U.S. Supreme Court granted certiorari, reversed the dismissal, holding the case was justiciable, and remanded it for a decision on the merits.
- On remand, the U.S. Court of Appeals for the D.C. Circuit held that Section 214(d) was unconstitutional because it impermissibly infringed on the President's exclusive power of recognition.
- The U.S. Supreme Court granted certiorari again to resolve the constitutional question.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a federal statute that directs the Secretary of State, upon request, to record 'Israel' as the place of birth on the passport of a U.S. citizen born in Jerusalem unconstitutionally infringe upon the President's exclusive power to recognize foreign sovereigns?
Opinions:
Majority - Justice Kennedy
Yes, the statute unconstitutionally infringes upon the President's exclusive recognition power. The Constitution grants the President the exclusive authority to recognize foreign sovereigns, a power derived from the Reception Clause, the power to make treaties, and the power to appoint ambassadors. This power is supported by historical practice and the functional need for the nation to speak with a single voice on matters of foreign policy. Section 214(d) forces the President to contradict his own formal recognition policy on an official government document—a passport—which is considered a political document addressed to foreign powers. By compelling the President to issue a statement that implies recognition of Israeli sovereignty over Jerusalem, Congress impermissibly aggrandizes its own power at the expense of the Executive's exclusive constitutional function.
Concurring in part and dissenting in part - Justice Thomas
Yes, as applied to passports, but no, as applied to consular reports of birth abroad. The President's authority over passports stems not from a specific recognition power but from the residual foreign affairs power granted by the Vesting Clause of Article II, and Congress has no enumerated power to compel the President's action here. However, Congress's authority over naturalization under Article I gives it the power to regulate consular reports of birth abroad, which are documents related to citizenship, not foreign relations. Therefore, Section 214(d) is unconstitutional as it applies to passports but constitutional as it applies to consular reports.
Dissenting - Chief Justice Roberts
No, the statute does not unconstitutionally infringe on the President's recognition power because it does not implicate that power. The act of listing 'Israel' as a place of birth on a passport at the citizen's request is not a formal act of recognition under international law; it is an act of identification. The President's power is at its 'lowest ebb' when acting in defiance of an Act of Congress. The majority's decision expands the recognition power beyond its textual and historical limits, allowing the President to defy a duly enacted statute based on the mere possibility that foreign observers might misinterpret it, creating a dangerous precedent that weakens the separation of powers.
Dissenting - Justice Scalia
No, the statute is a valid exercise of Congress's enumerated powers and does not infringe on any exclusive presidential power. Congress has authority under its Naturalization power and the Necessary and Proper Clause to regulate the contents of passports and consular reports, which are documents certifying citizenship. Section 214(d) is not a formal act of 'recognition,' which is a specific legal act with international consequences. It is merely a symbolic policy choice concerning the identity of U.S. citizens, an area where Congress has legislative authority. The Constitution divides foreign policy powers, and the President cannot ignore a valid statute simply because it conflicts with his diplomatic preferences.
Analysis:
This decision firmly establishes that the President's power over foreign recognition is exclusive and preclusive, falling into the third category of Justice Jackson's Youngstown framework where Congress is disabled from legislating on the matter. It expands the scope of the recognition power beyond the formal act itself to include control over official statements that might contradict or undermine the President's established policy. The ruling strengthens the executive's hand in foreign affairs, particularly in disputes with Congress over sensitive diplomatic messaging, and sets a significant precedent for the judiciary's role in resolving inter-branch conflicts over foreign policy.
Gunnerbot
AI-powered case assistant
Loaded: Zivotofsky v. Kerry (2015)
Try: "What was the holding?" or "Explain the dissent"