June 08, 2015

Supreme Court Decides Zivotofsky v. Kerry

On June 8, 2015, the U.S. Supreme Court decided Zivotofsky v. Kerry, No. 13-628, holding that the President of the United States has the exclusive power to grant formal recognition to a foreign sovereign.

Presidents have expressed a consistent policy of formally recognizing the sovereignty of Israel, but none has issued any official statement or declaration acknowledging any country’s sovereignty over Jerusalem. The State Department’s Foreign Affairs Manual instructs its employees to record on passports the place of birth as the “country [having] present sovereignty over the actual area of birth.” If a citizen objects to that designation, he or she may list the city or town of birth rather than the country. Because the United States does not recognize any country’s sovereignty over Jerusalem, the manual instructs employees to record “Jerusalem” for citizens born there. In 2002, Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003, which purports to allow citizens born in Jerusalem to list their place of birth as “Israel” on passports. In signing the Act into law, President George W. Bush issued a signing statement expressing concern that if construed as mandatory, the Act would “impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”

The petitioner was born to U.S. citizens living in Jerusalem. When his mother requested a passport and consular report of birth abroad for her son, she asked that his place of birth be listed as “Jerusalem, Israel,” but the State Department employee refused based on agency policy. The parents brought suit on behalf of their child in the D.C. District Court. The court dismissed the case for lack of standing and because it raised only a nonjusticiable political question. The D.C. Circuit Court of Appeals reversed on standing but affirmed on the political question doctrine. In a prior ruling, the Supreme Court reversed, holding that the constitutionality of the passport provision of the Foreign Relations Authorization Act was not a question reserved for the political branches. On remand, the Court of Appeals held that the provision was unconstitutional.

The Supreme Court affirmed, holding that the President of the United States has the exclusive power to grant formal recognition to a foreign sovereign. Applying the tripartite framework of presidential power from Youngstown Sheet & Tube Co. v. Sawyer, the Court concluded that the asserted power in this case is “at its lowest ebb”: where “the President takes measures incompatible with the expressed or implied will of Congress . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” The Court concluded that the text and structure of the Constitution nevertheless grant the President the power to recognize foreign nations and governments, and that the power held by the President lacks any analog in the powers vested in Congress. The Court also noted that the United States must speak with “one voice” on the topic of the sovereignty of a nation. Finally, the Court held that the balance of historical evidence also suggests that the recognition power is exclusive to the President. Because the passport provision of the Foreign Relations Authorization Act directly contradicts the executive branch’s consistent policy not to recognize the sovereignty of any one country over Jerusalem, the provision was invalid.

Justice Kennedy delivered the opinion of the Court, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Breyer filed a concurring opinion. Justice Thomas filed a separate opinion concurring in the judgment in part and dissenting in part. Chief Justice Roberts filed a dissenting opinion, in which Justice Alito joined. Justice Scalia filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.

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