Zivotofsky v. Kerry

Brief Fact Summary.

The State Department’s Foreign Affairs Manual (FAM) instructs its employees to record the place of birth for citizens born in Jerusalem as “Jerusalem,” with no inclusion of Israel. In 2002, Congress passed the Foreign Relations Authorization Act, seeking to override the FAM by allowing citizens born in Jerusalem to list their place of birth as “Israel.” In 2002, the petitioner, born in Jerusalem, sought to put “Jerusalem, Israel” as his place of birth, but the Embassy rejected pursuant to the State Department policy.

Synopsis of Rule of Law.

When a Presidential power is “exclusive,” it disables Congress from acting upon that subject.

Facts.

In 1948, President Truman formally recognized Israel in a signed statement but the statement did not recognize Israeli sovereignty over Jerusalem. Since then, neither President nor any subsequent U.S President has issued an official statement or declaration acknowledging any country’s sovereignty over Jerusalem. The President’s position on Jerusalem is reflected in State Department policy regarding passports and the State Department’s Foreign Affairs Manual (FAM) instructs its employees to record the place of birth for citizens born in Jerusalem as “Jerusalem,” with no inclusion of Israel. In 2002, Congress passed the Foreign Relations Authorization Act, seeking to override the FAM by allowing citizens born in Jerusalem to list their place of birth as “Israel.” In 2002, the petitioner, born in Jerusalem, sought to put “Jerusalem, Israel” as his place of birth, but the Embassy rejected pursuant to the State Department policy.

Issue.

• Does the President has the exclusive power to grant formal recognition to a foreign sovereign?
• If so, Can Congress command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition?

Held.

• Yes. The Reception Clause supports the President’s power to recognize other nations. Also, Article II grants the President the recognition power, which provides that the President shall make treaties and appoint ambassadors with the advice and consent of the Senate.
• No. The President shall make the initial, formal recognition determination and maintain that determination in his statements as well. If Congress could command the President to state a recognition inconsistent with his own, Congress could override the President’s recognition determination. Youngstown provides that when a Presidential power is “exclusive,” it “disables the Congress from acting upon that subject.” Here, the President has the exclusive power on a narrow subject – formal recognition determination – and Congress may not enact a law as to that determination that directly contradicts it.

Dissent.

Justice Roberts and Scalia

Justice Roberts: the President’s power reaches “its lowest ebb” when he contravenes the express will of Congress, “for what is at stake is the equilibrium established by our constitutional system.” The Reception Clause should be interpreted as an obligation rather than authorization granted to the President. At the time of the founding, the Framers viewed the executive reception as “a matter of dignity than of authority.” Although the President has authority over recognition, the Constitution does not provide “conclusive and preclusive” power as the majority argues.

Justice Scalia: The naturalization power under Article I enables Congress to furnish the people it makes citizens with papers verifying their citizenship such as a passport. Congress has the “discretion” to choose the one it deems “most beneficial to the people” and it has the right to to decide that recording birthplaces as “Israel” makes for better foreign policy. Moreover, the section of the Act at issue has nothing to do with recognition. It does not require the Secretary to formally declare Israel’s sovereignty over Jerusalem and international custom does not infer acceptance of sovereignty from the birthplace designation on a passport.

Thus, under the Constitution, Congress may require the petitioner’s passport to record his birthplace as Israel, even if that contradicts with the President’s preference for neutrality about the status of Jerusalem.

Discussion.

• At international law, recognition may be effected by various means but all are dependent upon Presidential power. For instance, the President has the sole power to negotiate treaties and nominate the nation’s ambassadors, but Congress may not ratify a treaty or send an ambassador without Presidential action. The Constitution thus grants the President means to effect recognition on his own initiative. Moreover, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. This will give assurances to foreign countries before entering into diplomatic relations or commerce with the United States. These assurances cannot be equivocal. Recognition is a topic that the Nation must “speak with one voice” and that voice must be the President’s because only the Executive has the characteristic of unity at all times. The President can engage in the delicate and secret diplomatic contacts that may lead to a decision on recognition, something that Congress cannot.
• Neither Israel nor any other country is acknowledged by the United States as having sovereignty over Jerusalem. Thus, the Foreign Relations Authorization Act contradicts the longstanding Executive branch policy of neutrality toward Jerusalem. Congressional command that directs the determination of the President would prevent the Nation from speaking with one voice and the Executive itself from doing so in conducting foreign relations.