Zivotofsky v. Kerry

Brief Fact Summary.

The petitioner, born to U.S citizens living in Jerusalem, sought to record his birthplace as Israel. While the State Department’s Foreign Affairs Manual (FAM) does not allow the record the place of birth for citizens born in Jerusalem as Israel, Congress passed an Act to to allow citizens born in Jerusalem to list their place of birth as “Israel.”

Synopsis of Rule of Law.

The President alone has the power of recognition and Congress has authority regarding many of the policy determinations that precede and follow the act of recognition itself.

Facts.

In 1948, President Truman formally recognized Israel. Despite the U.S policy of formal recognition of Israel, no U.S Presidents have officially acknowledged any country’s sovereignty over Jerusalem. Reflecting this presidential stance, the State Department’s Foreign Affairs Manual (FAM) instructs employees to record the place of birth for citizens born in Jerusalem as “Jerusalem” not Israel. In 2002, Congress passed an Act that seeks to override the FAM by allowing citizens born in Jerusalem to list their place of birth as “Israel.” The petitioner, born to U.S citizens living in Jerusalem, sought to record his birthplace as Israel.

Issue.

Can Congress pass a law that deals with recognition of a State in conflict with the President’s decision?

Held.

No, the power over recognition rests upon the President, who not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s statements. The President since the era of the Founders has exercised the unilateral power to recognize new states and the Court has consistently accepted this practice.

Dissent.

Justice Roberts and Scalia

Justice Roberts: Even if the President has the exclusive recognition power, he cannot prevail in this case, because the statute does not implicate recognition. If anything, the President’s recognition determination can only be supported by the exclusive authority to conduct diplomatic relations, which the majority has rejected.

Justice Scalia: Congress may make laws necessary and proper for carrying into execution the President’s powers but the President must take care that Congress’ legislation be faithfully executed. Acts of Congress made in pursuance of the Constitution are the supreme law of the land. In a field of shared authority, which is the case here, it is wrong to think as the majority did that the President shall prevail. Congress has the power to grant American citizenship to someone born abroad and the Act at issue shall prevail over the President’s order.

Concurrence.

Justice Thomas

Founding-era evidence shows that the executive power included the foreign affairs powers of a sovereign State. Given the pervasive view of executive power, it shall be understood that the Framers understood the executive power vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution. Also, in the Anglo-American legal tradition, passports have traditionally been issued and controlled by executive branch.

Discussion.

Prominent international scholars during the era of the Founders suggested that receiving an ambassador, the power solely granted to Presidents, was equal to recognizing the sovereignty of the sending state. It can then inferred from this that allowing the President alone to receive ambassadors meant to acknowledge his power to recognize other nations. Moreover, Article II grants the President power to nominate and appoint Ambassadors.

These additional powers under the Constitution give the President control over recognition decisions. Also, the Nation must have a single policy regarding which governments are legitimate in the eyes of the U.S and which are not. Foreign nations need to know before entering into a diplomatic relation with the U.S whether the U.S recognizes the nations as nations. Such assurances cannot be equivocal. The Nation must speak with one voice regarding recognition and the voice must be the President’s.