From the Court: Zivotofsky v. Kerry

June 8, 2015

The U.S. Supreme Court issued its decision today in Zivotofsky v. Kerry, No. 13-628. I mentioned this case in Welcome Back, Justices! last October. It is one of the big deal cases of the term, and it’s likely that the politics will eclipse the legal principles.

The decision was 6-3. Justice Kennedy wrote the majority opinion. The Chief Justice and Justices Alito and Scalia dissented, and Justice Thomas concurring in the judgment but dissenting in part. The opinions total 93 pages, so you’re getting a “down and dirty” for today.

Court opinions usually have a syllabus. Here, the syllabus provides a good summary of the facts and the legal issue:

Petitioner Zivotofsky was born to United States citizens living in Jerusalem. Pursuant to §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003 [also known as the United States Policy with Respect to Jerusalem as the Capital of Israel], his mother asked American Embassy officials to list his place of birth as “Israel” on, inter alia, his passport. Section 214(d) states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” The Embassy officials refused to list Zivotofsky’s place of birth as “Israel” on his passport, citing the Executive Branch’s longstanding position that the United States does not recognize any country as having sovereignty over Jerusalem. Zivotofsky’s parents brought suit on his behalf in federal court, seeking to enforce §214(d). Ultimately, the D. C. Circuit held the statute unconstitutional, concluding that it contradicts the Executive Branch’s exclusive power to recognize foreign sovereigns.

There will surely be plenty of talk about dissing Israel, and Obama this, Obama that!* Simply, though, this case deals with the Reception Clause in Article II, Sec. 3 of the Constitution. This clause gives to the president the power to “receive ambassadors and other public ministers.” In the early days of our nation, “receiving an ambassador was tantamount to recognizing the sovereignty of the sending state.”**

Justice Kennedy’s opinion is full of history, and well worth reading. Ultimately, though, he and the majority reach the conclusion that the executive branch has the power to recognize sovereign nations, and that “[i]f the power over recognition is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s statements.” Thus, deciding the Jerusalem question for passport purposes lies in the purview of the President, not Congress. (Not lost on the majority was the fact that the legislation Congress passed had as its evident purpose giving to Congress a role in the recognition issue.)

Justice Scalia wrote the principal dissent. In it he argues that, while recognition powers belong to the president, they don’t exclusively with him or her. Further, he draws a distinction between “a formal declaration about Israel’s sovereignty over Jerusalem” and “making a notation in a passport or birth report … .” Of course, Congress passed the law in 2003 not to provide more clarity on passports; rather, it wanted to make a statement about the U.S. position on Jerusalem.

I read Opinion analysis: Walking on a tightrope on Mideast policy by Lyle Denniston for SCOTUSblog, and I recommend it. When I read it I was confident that the majority got it right, and that Justice Scalia was wrong. I’m still pretty sure, but after giving the opinions about an hour of my time, I’m less certain than I was. Tough case!

*President George W. Bush signed the law at issue, but in doing so he issued a signing statement in which he questioned the constitutionality of the law. Presidents from Harry Truman to Barack Obama have without exception refused to decide the Jerusalem question.


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