Zivotofsky v. Kerry

Brief Fact Summary.

The State Department did not allow any country to be listed as the place of birth on passports for citizens born in Jerusalem. In spite of this, Congress passed a law allowing citizens born in Jerusalem to list their birthplace as “Jerusalem, Israel.”

Synopsis of Rule of Law.

The president has the exclusive authority to recognize foreign nations and governments.

Facts.

The President had not recognized any country’s sovereignty over Jerusalem, and the State Department’s Foreign Affairs Manual instructed employees to record only “Jerusalem,” not any country, as the place of birth of passports of citizens born in Jerusalem. In 2002, Congress passed the Foreign Relations Authorization Act. Section 214 of the Act allowed citizens born in Jerusalem to list their place of birth as Israel, contradicting the Foreign Affairs Manual instructions. After American Embassy clerks refused Zivotofsky’s mother’s request to list her son’s birthplace as “Jerusalem, Israel” on his passports, Zivotofsky’s parents filed a complaint against the government.

Issue.

Does the president have the exclusive power to recognize foreign states and governments?

Held.

Yes, the president has the exclusive power to recognize foreign states and governments.

Dissent.

Justice Scalia

Justice Scalia argued that the Supreme Court’s opinion did not rely on text, history, or precedent, but on the functional consideration that there must be a unified voice in the realm of international diplomacy. According to Justice Scalia, this consideration would always be better served by unilateral executive authority than by congressional action in areas of foreign affairs, and that the Supreme Court’s approach would weaken the separation of powers.

Concurrence.

Justice Thomas (concurring in part and dissenting in part)

Justice Thomas agreed with the Supreme Court’s holding that § 214(d) was unconstitutional, but he argued that it was only unconstitutional because there is no constitutional grant of authority upon Congress to regulate passports in this way. Justice Thomas did not believe that the president’s recognition power was implicated here.

Discussion.

The Supreme Court begins its analysis by laying out a rule from Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer: when the president takes action incompatible with Congress’ express or implied will, he can only rely on his own constitutional powers minus any constitutional powers Congress has over the matter. Under Youngstown, the president’s power is at its lowest ebb in this category. To satisfy the test, the president’s asserted authority must be exclusive and conclusive on the issue.

The Supreme Court begins its application of the Youngstown test by analyzing the constitution. The Supreme Court found that there is no explicit reference to the recognition power in the constitution, but that, at the time of the nation’s founding, receiving an ambassador was the equivalent of recognizing a state or government. According to the Supreme Court, President Washington recognized the French Revolutionary Government by receiving its ambassador. According to the Supreme Court, the president’s powers laid out in Article II support this inference. In contrast, no constitutional provision gives Congress the power to initiate diplomatic relations with other countries.

The Supreme Court then turns to whether the president power to recognize foreign countries and governments is exclusive, and it finds that it is. According to the Supreme Court, historical practice and judicial precedent support this finding, as well as the need for a unified voice in the realm of diplomacy. The Supreme Court also held that the President’s recognition power is still subject to Congressional qualification, and that the president’s authority to act unilaterally does not extend to all other areas of foreign policy.  The Supreme Court then held that§ 214(d) infringed on the President’s recognition power, and that legislative history indicated that Congress intended to infringe on this power.