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Zivotofsky v. Kerry

Citation. 576 U.S., 135 S.Ct. 2076, 192 L.Ed.2d 83 (2015).
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Citation. 576 U.S., 135 S.Ct. 2076, 192 L.Ed.2d 83 (2015).

Brief Fact Summary.

In 2002, Congress passed the Foreign Relations Authorization Act.  Prior to the Act, the State Department’s policy was to list citizens born in Jerusalem as being born in Jerusalem.  Section 214 of the Act, however, sought to allow citizens born in Jerusalem to list their birthplace as Israel.  Seeking to remain neutral, the President refused to recognize Israel as the sovereign over Jerusalem.

Synopsis of Rule of Law.

The Constitution grants the President the exclusive power to recognize foreign nations.


Beginning in 1948 with President Truman, no President has issued an official statement acknowledging any country’s sovereignty over Jerusalem.  While President Truman recognized Israel in a signed “recognition,” he did not recognize Israel as the sovereign over Jerusalem.  Instead, the President sought to remain neutral, deeming neither Israel, Jordan, nor Palestine as sovereign.

In 2002, Congress passed the Foreign Relations Authorization Act.  Prior to the Act, the State Department’s policy was to list citizens born in Jerusalem as being born in Jerusalem.  Section 214 of the Act, however, sought to allow citizens born in Jerusalem to list their birthplace as Israel.  President George W. Bush issued a statement on Section 214 of the Act.  He argued that the Section must be advisory only.  If construed as mandatory, the Section would infringe on the President’s executive powers.

Zivotofsky was born to United States citizens living in Jerusalem, and his parents requested that his birthplace be listed as “Jerusalem, Israel.”  The American Embassy refused, alleging that the State Department policy would only allow them to list Jerusalem.  Zivtofsky’s parents sued, seeking to enforce Section 214 of the Act.


(1) Whether the President has the exclusive power to grant formal recognition to a foreign sovereign.

(2) If so, may Congress command the President to issue a formal statement that contradicts the earlier recognition?


JUSTICE KENNEDY holding: (1) Yes.  The Reception Clause grants the President the sole power to receive foreign ambassadors.  Thus, it follows that the President has the power to recognize other nations.  Further, the power to grant formal recognition flows from the President’s Article II powers involving foreign nations.

(2) No, the President’s role in the recognition process is both “central and exclusive.”


Justice Roberts

The Chief Justice dissented, reasoning that the Court had never before “accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”

Justice Scalia

Justice Scalia agreed that the President can grant a formal recognition, but he disagreed that this power was vested exclusively to the President.  In 1934, Congress directed the President to recognize the independence of the Philippines under its power to “dispose of the Territory or other Property belonging to the United States.”  Art. IV, Sec. 3, cl. 2.  If Congress could grant a formal recognition in that case, the power could not be exclusively granted to the President.  Nonetheless, Section 214 should not be construed as a formal recognition, but as an announcement of policy.  A recognition is “a formal legal act with effects under international law,” and merely listing a country on a passport does not carry that weight.


Justice Breyer

Justice Breyer believed that the case presented a political question and thus should not have been addressed by the Court.  However, he concurred in the judgment because precedent prevented the Court from dismissing the case on political question grounds.

Justice Thomas

Justice Thomas argued that foreign affairs powers not enumerated in the Constitution are vested in the President pursuant to Article II’s Vesting Clause.  Because the recognition power is not enumerated, it is vested in the President.


In deciding whether the Constitution granted the President the authority to grant formal recognitions, the Court applied the tripartite framework from Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952).  Jackson’s concurrence divided exercises of Presidential power into three categories:  the President acts with the most authority under congressional act, with concurrent authority when Congress is silent, and with the least authority when his actions are “incompatible with the express or implied will of Congress.”  Because Section 214 was incompatible with the President’s stance on Jerusalem, the action was evaluated under the third category.  To succeed in this category, the President’s asserted power must be “exclusive” and “conclusive” on the matter.

The Court first examined the President’s power under the Reception Clause.  Initially, Alexander Hamilton argued that the power to receive ambassadors was “more a matter of dignity rather than of authority.”  Hamilton changed his view, however, when President Washington recognized the French Revolutionary Government by receiving its ambassador.  The Court reasoned that while the President’s power to recognize other nations was not explicit, it logically flowed from his authority to receive ambassadors.

The Court next turned to the President’s remaining powers regarding foreign nations.  Article II of the Constitution authorizes the President to “make treaties” and to “appoint ambassadors.”  While Congress has some power regarding foreign nations, Congress may not initiate diplomatic relations with a foreign nation without the President.  Conversely, the President may engage directly with foreign nations on his own initiative.  Thus, the structure of the Constitution ensures that the power to make recognition decisions was granted to the President.

Finally, the President’s power to grant formal recognitions must be exclusive because “the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.” Because Section 214 of the Act would have contradicted the President’s recognition decision, it was unconstitutional.

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