Zivotofsky v. Kerry

LII note: The U.S. Supreme Court has now decided Zivotofsky v. Kerry.

Issues 

Does a federal statute that directs the Secretary of State, upon an American citizen’s request, to record the birthplace of an American citizen born in Jerusalem as born in “Jerusalem, Israel” on a United States passport and on a Consular Report of Birth Abroad infringe upon the President’s authority to recognize foreign states and governments?

Oral argument: 
November 3, 2014
Court below: 
United States Court of Appeals for the D.C. Circuit

When the United States does not have an official position regarding which country controls a city, United States passports will list the city of birth but not a country of birth. The Supreme Court will now determine two legal issues: (1) whether Foreign Relations Authorization Act’s Section 214(d) is an exercise of regulating the issuance of passports or an exercise of recognizing foreign nations; and (2) if Section 214(d) is an act of recognition, whether the President has exclusive authority to recognize foreign nations. Zivotofsky argues that Section 214(d) is a constitutional exercise of Congress’ power to regulate the issuance of passports and also contends that the Constitution does not vest exclusive recognition authority in the President. The Secretary of State argues that Section 214(d) is a constitutional exercise of the President’s power to recognize foreign nations and also contends that the Constitution vests exclusive recognition authority in the President. The Supreme Court’s decision could affect U.S. foreign policy and the allocation of powers between the legislative and executive branches.

Questions as Framed for the Court by the Parties 

Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

Facts 

Due to the Arab-Israeli conflict, the "political status of Jerusalem has been in dispute since 1948." As part of peacekeeping efforts, the United States government does not recognize Jerusalem as belonging to any sovereign nation. In keeping with this general policy, the State Department requires that citizens born in Jerusalem after May 14, 1948, have their place of birth recorded as “Jerusalem” without reference to Israel or any other country. On September 30, 2002, Congress enacted Section 214(d) of the Foreign Relations Authorization Act (“FRAA”), which provided that United States citizens born in Jerusalem can request the Secretary of State to record their place of birth as Israel. President Bush signed the FRAA into law but issued an accompanying statement which stated that Section 214(d) impermissibly interferes with the President’s exclusive authority to conduct foreign affairs, supervise the executive branch, and recognize foreign governments. The President’s statement further declared that the provision did not alter the United States’ policy regarding Jerusalem.

Menachem Zivotofksy was born in Jerusalem in 2002. Because both of Zivotofsky’s parents are United States citizens, Zivotsofky is also an American citizen and therefore entitled to a United States passport. On December 24, 2002, Zivotofsky’s mother, Naomi Siegman Zivotofsky, applied for a United States passport and a Consular Report of Birth Abroad from the United States Embassy in Tel Aviv, Israel on her son’s behalf. On the application, Zivotofsky’s mother requested that both documents list Zivostfsky’s birthplace as “Jerusalem, Israel.” When the State Department refused the request and instead listed “Jerusalem” without reference to Israel, Zivotofsky, through his parents, sued the Secretary of State to compel the State Department to record Zivotofsky’s place of birth as “Israel.”

The District Court for the District of Columbia dismissed Zivotofsky’s case for lack of subject matter jurisdiction because Zivotofsky lacked standing and the complaint centered around a non-justiciable political question. The Court of Appeals for the District of Columbia reversed the district court’s decision and held that Zivotofsky did have standing but remanded the case to create a clearer record on the matter of whether the case presented a non-justiciable political question. On remand, the district court again dismissed the case for lack of subject matter jurisdiction and held that the case presented a non-justiciable political question. The court of appeals affirmed. The Supreme Court of the United States (“Court”) held that the case did not involve a political question but rather involved a justiciable constitutional issue surrounding recognition powers. The Court then reversed and remanded to resolve the raised constitutional question. On remand, the court of appeals held that Section 214(d) impermissibly infringed on the President’s exclusive power to recognize foreign governments. The Court then granted writ of certiorari to address whether or not the provision impermissibly infringed on the President’s recognition powers.

Analysis 

The Court will decide whether Section 214(d) of the FRAA impermissibly infringes the President’s authority to recognize foreign nations. In doing so, the Supreme Court must determine two legal issues: (1) whether Section 214(d) is an exercise of regulating the issuance of passports or an exercise of recognizing foreign nations; and (2) if Section 214(d) is an act of recognition, whether the President has exclusive authority to recognize foreign nations. Zivotofsky argues that Section 214(d) is a constitutional exercise of Congress’ power to regulate the issuance of passports. Zivotofsky also contends that the Constitution does not vest exclusive recognition authority in the President. The Secretary argues that Section 214(d) is a constitutional exercise of the President’s power to recognize foreign nations. The Secretary also contends that the Constitution vests exclusive recognition authority in the President.

IS SECTION 214(d) PASSPORT LEGISLATION OR AN EXECUTIVE ACT OF RECOGNITION?

Zivotofsky maintains that Section 214(d) is a constitutional exercise of Congress’ Article I power to regulate the issuance of passports. Zivotofsky asserts that Congress frequently regulates the issuance and content of passports “even when they affect significant policy concerns.” Zivotofsky thus argues that the President’s foreign policy objectives can exist side-by-side with Section 214(d). Zivotofsky analogizes Section 214(d) to the State Department Authorization Technical Corrections Act of 1994 (“Corrections Act”), which provided that the Secretary of State could “‘permit’ U.S. citizens born in Taiwan to list ‘Taiwan’ as the place of birth on their U.S. passports” instead of “China.” Zivotofsky explains that the State Department believed that the Corrections Act was inconsistent with the United States’ “one-China” policy, which recognized the People’s Republic of China as China’s sole legal government. Nevertheless, Zivotofsky noted that the State Department was still able to enforce the Corrections Act while maintaining its one-China policy. Zivotofsky also argues that the Secretary can enforce Section 214(d) and issue a formal policy declaration that explicitly states that American foreign policy regarding Jerusalem has not changed.

The Secretary argues that Section 214(d) is a constitutional exercise of the President’s Article II power to recognize foreign nations.The Secretary explains that recognition “is an official conclusion by the United States that the entity in question meets the requirements of a state or government[] and should be treated as such” by the United States. Since the Secretary and the President do not consider Jerusalem within the sovereign control of any nation, the Secretary states that the President must ensure that communications with foreign sovereigns consistently express this view. The Secretary argues that passports are a means of diplomatic communication through which the President expresses this message to foreign nations. As such, by requiring the President to list “Israel” as the place of birth for citizens born in Jerusalem, the Secretary contends that Section 214(d) forces the President to contradict his recognition policy regarding Jerusalem in official diplomatic communications to foreign nations. The Secretary also asserts that Zivotofsky’s Corrections Act analogy is misleading. The Secretary argues that the United States recognizes the People’s Republic of China as China’s legal government but does not take a position on Taiwan. Thus, the Secretary argues that listing “Taiwan” or “China” is a mere geographic description. The Secretary clarifies that this is not the case with Israel and Jerusalem because the United States takes the position that Israel does not have sovereignty over Jerusalem.

DOES THE PRESIDENT HAVE EXCLUSIVE RECOGNITION AUTHORITY?

Assuming that Section 214(d) is an act of recognition, Zivotofsky argues that the Constitution does not vest the President with exclusive authority over recognition. Zivotofsky contends that both the text of the Constitution and the history of constitutional interpretation demonstrate that Congress and the President generally share recognition authority. Zivotofsky asserts that the Constitution does not contain a “recognition clause,” which explicitly grants recognition authority to Congress or the President. Zivotofsky argues that that the Framers of the Constitution (the “Framers”) did not include such a clause because “recognition” was not an important issue at the time of the Constitution’s ratification. Similarly, Zivotofsky argues that the Framers did not interpret the “receive ambassadors” clause in Article II as granting the President exclusive recognition authority. Zivotofsky explains that Alexander Hamilton, for example, characterized the President’s power to receive ambassadors as inconsequential. Zivotofsky argues that the Court should instead interpret the Constitution as granting recognition power to both Congress and the President. Zivotofsky cites the Court’s opinion in Palmer, which noted “that the ‘delicate and difficult’ issues affecting recognition . . . ‘belong more properly’ . . . to the legislative and executive departments.” Zivotofsky also points out that in Haig v. Agee, the Court allowed “the Secretary of State to revoke the passport of a citizen who was causing serious damage to . . . foreign policy” only after determining that the Secretary was statutorily authorized by Congress to do so.

Because the President does not have explicit recognition authority, Zivotofsky explains, the scope of the President’s recognition authority should be properly determined by using the tripartite scheme established in Youngstown. Here, Zivotofsky maintains that the President acted against Congress’ express will—which the Youngstown scheme classifies as the President’s weakest position—by refusing to list Israel as Zivotofsky’s place of birth pursuant to Section 214(d), and the President did so without explicit constitutional authority. Thus, Zivotofsky asserts that the President cannot establish authority over the content of passports and “nullify Congress’ directive in passport legislation.”

The Secretary, however, contends “the text and structure of the Constitution’s foreign-affairs provisions” vest exclusive recognition authority in the Executive Branch. The Secretary argues that the power to receive ambassadors contained in Article II, § 3 encompasses the power to choose “whether to establish diplomatic relations with a foreign entity.” Since this power entails recognizing a nation’s government, the Secretary concludes that the President must have exclusive recognition authority. The Secretary contends that the President’s exclusive recognition authority is also confirmed by historical practice. The Secretary maintains that Congress never historically had a “role in recognizing foreign states or governments.” For example, the Secretary explains that President Washington “recognized the new government of France” without consulting Congress. Moreover, the Secretary argues that the Court has repeatedly affirmed that the President’s recognition authority is exclusive. For example, the Secretary argues that in Belmont, the Court acknowledged the President’s “sole” authority to recognize foreign governments.

The Secretary thus argues that Congress lacks enumerated powers over recognizing foreign nations. Further, the Secretary maintains that Congress’ enumerated powers do not encompass the power of recognition. The Secretary explains that Congress’ war powers, for example, do not include recognition authority because the decision to go to war does not require recognition of an enemy. Since Congress lacks enumerated power over recognition, the Secretary concludes that the principle of separation of powers prohibits “Congress from exercising its authority over the content of passports in a manner that interferes with the President’s exclusive [recognition] authority.”

Discussion 

The Court will determine whether Section 214(d) of the FRAA unconstitutionally infringes on the President’s exclusive recognition power. Zivotofsky argues that Section 214(d) does not infringe on the President’s authority to recognize foreign governments because Section 214(d) is an exercise of Congress’ power to regulate the issuance of passports and the President does not have exclusive authority to recognize foreign governments. Conversely, Secretary of State John Kerry (“Secretary”) argues that Section 214(d) encroaches on the President’s recognition powers because Section 214(d) is an exercise of recognition and the Constitution gives the President exclusive power to recognize foreign states. The outcome of this case will likely impact foreign policy and also likely impact the balance of powers between the executive and legislative branches of government.

IMPACT ON FOREIGN POLICY

Zivotofsky and supporting amici claim that enforcing Section 214(d) will have a negligible impact on foreign policy. Supporting amici argue that Section 214(d) is a narrow law that represents neither a pronouncement by the United States on the status of Jerusalem nor a shift in the United States’ position to not recognize any country’s sovereignty over Jerusalem. Instead, the International Association of Jewish Lawyers and Jurists explains that Section 214(d), rather than expressing the United States’ position on Jerusalem, expresses an American passport holder’s position that Jerusalem is part of Israel. Other supporting amici refer to an analogous American law that allows American citizens, who were born in Taiwan, to list their birth place as “Taiwan,” even though the United States does not recognize Taiwan as a state separate from the People’s Republic of China. These amici cite this law as proof that the Secretary could enforce Section 214(d) without negatively impacting an international foreign policy.

The Secretary claims that enforcing Section 214(d) will have a significant impact on foreign policy. The Secretary asserts that the President should have exclusive power to recognize the sovereignty of other nations because the United States must speak with one voice with regards to foreign policy. The Secretary explains that allowing both Congress and the President to weigh in on this foreign policy issue will create international uncertainty about the United States’ official position on Jerusalem. The Secretary also maintains that Section 214(d) undermines the President’s commitment to continuing Arab-Israeli negotiations on Jerusalem’s status, which could undermine the United States’ ability to participate in peacekeeping efforts in the region. Further, the Secretary maintains that changing the United States’ policy on Jerusalem can negatively impact trade relations and the treatment of Americans abroad. In support of the Secretary’s position of advancing peace negotiations, True Torah Jews adds that Jerusalem should continue to be considered an international city and a free zone.

IMPACT ON BALANCE OF POWERS

Zivotofsky and supporting amici argue that failure to enforce Section 214(d) will undermine Congressional authority and upset the balance of powers between the executive and legislative branches. The Senate and the Anti-Defamation League argue that Congress was within its sphere of authority to enact Section 214(d) because Congress has the power to regulate the issuance of passports. Supporting amici further add that the balance of powers will not be upset by the enforcement of Section 214(d) because Section 214(d) is a ministerial task of little significance. Further, supporting amici contend that if the Court finds that the President has exclusive recognition powers and control of foreign policy, the executive branch would have too much power over foreign policy.

Conversely, the Secretary maintains that enforcing Section 214(d) will upset the balance of powers by infringing on the President’s exclusive authority to recognize foreign nations. The Secretary argues that the President has the exclusive right to receive Ambassadors and recognize foreign nations under Article II, § 3 of the United States Constitution (“Constitution”). The Secretary further argues that, since the Constitution’s clauses related to foreign relations do not mention Congress and instead only mention the President’s authority, Congress is barred from legislating in the realm of foreign relations. The Secretary adds that sharing recognition powers between Congress and the President would undermine the United States’ ability to make recognition decisions with necessary efficiency.

Conclusion 

In this case, the Court will decide whether Section 214(d) of the FRAA impermissibly infringes the President’s recognition authority. Zivotofsky argues that Section 214(d) is a constitutional exercise of Congress’ power to regulate the issuance of passports. Zivotofsky also contends that the Constitution does not vest exclusive recognition authority in the President. The Secretary, however, argues that Section 214(d) is a constitutional exercise of the President’s power to recognize foreign nations. The Secretary also contends that the Constitution vests exclusive recognition authority in the President. The outcome of this case will likely impact foreign policy and the balance of powers between the executive and legislative branches of government.

Written by 

Chris Milazzo
Carolyn Wald

Edited by 

Paul Kang

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