A divided Supreme Court has sided with the president over Congress in a politically charged passport case, concluding that the executive branch has the “exclusive power” to formally recognize foreign sovereigns.
In a 6-3 decision Monday, the court concluded the State Department could consequently refuse to list “Israel” as the place of birth for a U.S. citizen born in Jerusalem. The long-awaited decision, Justice Anthony Kennedy acknowledged, forced the court to sort through “difficult and complex” conflicts.
“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 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.
All told, an estimated 50,000 U.S. citizens have been born in Jerusalem.
President George W. Bush, in signing the larger 2002 law of which the passport language was only a part, issued a statement at the time that Congress could not interfere with the president’s authority to “speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states.”
Zivotofsky’s parents subsequently sued when they were denied their request to list Israel as the place of birth, and their case has been shuttling among courts in the years since. The Obama administration followed Bush’s lead in opposing the passport effort, which all agree has broader separation-of-powers implications.
“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,” Kennedy cautioned.
The case was argued Nov. 3, making it one of the oldest cases yet to be decided by justices this year. The case also drew an unusual amount of outside scrutiny, with groups including the American Jewish Committee, the Anti-Defamation League and the state of Texas filing briefs supporting Zivotofsky, as did dozens of lawmakers representing both parties.
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 making a point of 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 conservative Justice Clarence Thomas concurred in part and dissented in part.