A divided Supreme Court on Monday sided with the president over Congress in a politically charged passport case, concluding the Executive Branch has the “exclusive power” to formally recognize foreign sovereigns.
“Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues in current international affairs,” Kennedy wrote.
No U.S. president has recognized Israel, or any other country, to have sovereignty over Jerusalem. As a matter of U.S. foreign policy, the question has been left up to Israel and the Palestinians.
The position is reflected in State Department policy regarding passports and consular reports of birth abroad. Because passports reflect U.S. foreign policy, the State Department’s Foreign Affairs Manual instructs its employees, in general, to record the place of birth on a passport as the “country having present sovereignty over the actual area of birth.”
In 2002, though, Congress passed legislation allowing citizens born in Jerusalem to list their place of birth as “Israel.” That year, Menachem Binyamin Zivotofsky was born in Jerusalem to U.S. citizens. His parents subsequently sued when they were denied their request to have Israel listed as place of birth.
“The Constitution...assigns the president means to effect recognition on his own initiative. Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation,” Kennedy wrote.
Kennedy further stressed that the United States “must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.” Too much congressional meddling, he suggested, would muddy the waters.
“Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights
The American-Arab Anti-Discrimination Committee filed a brief supporting the Obama administration.
Underscoring the controversy, three separate dissenting opinions were written, with Justice Antonin Scalia reading part of his from the bench.
“Recognition is a type of legal act, not a type of statement,” Scalia wrote. “It is a leap worthy of the Mad Hatter to go from exclusive authority over making legal commitments about sovereignty to exclusive authority over making statements or issuing documents about national borders.”
Chief Justice John Roberts, Jr. added in a separate dissent that the decision was “a first.”
“Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs,” Roberts wrote. “We have instead stressed that the president’s power reaches its lowest ebb when he contravenes the express will of Congress.”
Justice Samuel Alito dissented as well, while fellow conservative Justice Clarence Thomas concurred in part and dissented in part.