Outside the Beltway

Supreme Court Slaps Back Congress In Jerusalem Passport Case

In a case that took seven months to decide, the Supreme Court ruled in favor of the Presidency's broad authority in foreign affairs, and inserted itself just a little bit in the thorny politics of the Middle East.

Doug Mataconis · Monday, June 8, 2015 · 11 comments

Resolving a dispute between Congress and the Executive Branch that goes back more than a decade, the Supreme Court ruled today that a law which required the State Department to acknowledge on passports that an American citizen who was born in Jerusalem was also born in Israel is unconstitutional:

WASHINGTON — In an important separation-of-powers decision, the Supreme Court on Monday ruled that Congress may not require the State Department to indicate in passports that Jerusalem is part of Israel.

The vote was 6 to 3, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. dissenting.

Justice Anthony M. Kennedy, writing for five justices, said the question of the status of Jerusalem is “a delicate subject.” But he said the Constitution conferred exclusive authority on the president to recognize foreign governments.

In dissent, Chief Justice Roberts said the majority had taken a bold step. “Today’s decision is a first,” he wrote. “Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.”

The case concerned a 2002 law that instructed the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem if their parents asked. It was brought by the parents of Menachem B. Zivotofsky, who was born not long after Congress enacted the law. Under the State Department’s policies, their son’s passport says that he was born in Jerusalem; they sought to have it say Israel.

President George W. Bush signed the law, part of an appropriations bill, but said he would not follow the Jerusalem provision because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.”

The Obama administration also objects to the provision and has refused to follow it. In its Supreme Court briefs, it told the justices that the status of Jerusalem should be resolved by negotiations between Arabs and Israelis.

 Lyle Denniston summarizes the opinion:

The ruling in Zivotofsky v. Kerry obviously was a difficult one for the Court: argued in early November, the case took more than seven months to prepare, emerging Monday in five separate opinions in a six-to-three split.   The decisive opinion, written by Justice Anthony M. Kennedy, carried the day, nullifying a 2002 law in which Congress had ordered the State Department to list Israel as the place of birth for U.S. citizens who had been born in Jerusalem, if they asked for that notation on official documents — an order that directly contradicted generations of presidential decisions to maintain U.S. neutrality on the question of which nation controls Jerusalem.

Before reaching the question of that specific law’s constitutionality, the Court for the first time in history ruled that the president has the exclusive power to decide what other foreign nations the United States will formally recognize for nation-to-nation dealings, and that Congress may not force the president to make a different choice about that.  In fact, most of Justice Kennedy’s thirty-page opinion was devoted to that core question about the Constitution’s distribution of foreign policy powers.

From that exclusive authority to “speak with one voice for the nation” about recognizing other governments, the Kennedy opinion drew the separate conclusion that what is said on U.S. passports that might make a statement about what nation is recognized as sovereign is up to the president.  While Congress has some role over passport policy, the opinion said, it simply has no authority to order the executive branch to issue a document that says something that the president has refused to say as official policy.

“If the power over recognition is to mean anything,” Kennedy wrote, “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, the 2002 law at issue fell, both on its attempt to allow ”Israel” to be listed as the place where Americans began their lives upon birth in Jerusalem, and its attempt to compel U.S. consular officers to use “Israel” when reporting back home on the Jerusalem birth of a citizen.  Although both of those provisions were nullified, the Kennedy opinion’s analysis of constitutionality was devoted only to the passport issue.

The majority opinion was joined in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, although Breyer wrote a brief separate opinion saying that he would prefer it if the Court had stayed out of this dispute, treating it as a “political question” not subject to court review.

Justice Clarence Thomas, in a separate opinion, joined only the result that struck down the 2002 law as it applied to what is said on passports, but he refused to join the Kennedy rationale for that outcome.  In addition, Thomas said he would have upheld the law so far as it dictated the notation of place of birth on reports by U.S. consular officers abroad.

Chief Justice John G. Roberts, Jr., wrote a dissenting opinion for himself and Justice Samuel A. Alito, Jr.  Justice Antonin Scalia wrote a separate dissenting opinion, joined by both the Chief Justice and Justice Alito.  Justice Scalia, speaking from the bench following Justice Kennedy’s announcements, spoke passionately against the ruling, contending that the 2002 Jerusalem passport law “has nothing to do with” the recognition of foreign governments.

While it may have taken seven months because of the unique issues involved, and while it will no doubt raise passions in some corners based on everything to do with the politics of the Middle East and little to do with thelaw, the Court’s decision here is completely correct. When this provision was passed into law as part of a provision of a massive bill to authorize finding for the State Department for the 2003 Fiscal Year, President Bush noted in a signing statement that his Administration was taking the position that this part of the law was not enforceable because it was an unconstitutional infringement of the foreign affairs powers reserved to the Executive Branch under the Constitution and the Obama Administration adopted this position in 2009. Both Administrations argued that the Constitution gives the Executive Branch the exclusive power to recognize governments and that the law in question effectively required the State Department to make the official declaration that Jerusalem is solely Israeli property. This, of course, is a point of contention between the Israelis and Palestinians that remains to be resolved as part of a comprehensive peace agreement. Until that happens, the United States has always taken the position that the status of Jerusalem remains unresolved notwithstanding the fact that Israel has had de facto control of Jerusalem since the Six Day War. While some have argued that Presidential authority in this area is far from clear, as I argued when the case was before the Court nearly four years ago during what turned out to be only its first journey through the Federal Courts it seems clear that the Executive Branch is the only appropriate entity for an authority such as this:

One could argue, it seems to me, that the power to recognize governments would be covered by the President’s plenary authority over the conduct of foreign affairs. However, the broader question really would be if the President doesn’t have the authority to recognize new governments, then who does? Placing that authority in the hands of Congress when no such power can be found in the confines of Article I makes no sense whatsoever, and the only other argument would be that nobody has such a power, which strikes me as pure nonsense. The fact that nobody in the Founding generation seemed to question Washington’s authority with respect to the recognition of Revolutionary France, argues strongly that it was accepted that this was part of the natural duties of the Chief Executive. In any event, while it’s an interesting academic argument, I find it hard to believe that the Supreme Court would rule that Congress has the authority to tell the President how to conduct foreign affairs.

When the case was argued in November, I expanded on that thought:

Outside of authority over borders and immigration, the Constitution gives Congress very little authority over the conduct of foreign policy beyond an oversight role. Most of that authority, as stated above, belongs to the President. If the Court were to decide that Congress has the authority to override Presidential decisions on foreign policy such as the decision to remain neutral on the current status of Jerusalem, which has been part of American foreign policy since the Nixon Administration, then what else could Congress do. Could it, for example, attempt to force the President to refuse to recognize the person appointed by the government in Beijing as the Ambassador of the nation known as China in favor of the resident of the government on Taiwan? Could it force the President to recognize a government-in-exile over the de facto and de jure  government of a nation such as Iran or Syria? Could Congress have forced the State Department to take the position that Belfast is actually territory of the Republic of Ireland rather than the United Kingdom? These may seem like somewhat silly examples as we sit here today, but if Congress has the authority to force the State Department to issue documents saying that Jerusalem is a part of Israel notwithstanding official U.S. policy, a position that could have serious consequences for American interests in the Middle East, then there would seem to be no end to what Congress could do in this area.

The other way to approach this issue would be the narrower one that Justice Thomas took in his concurring in opinion where he argued that the law should be struck down not based on a broad reading of the Executive Branch’s powers over foreign affairs but based simply on the question of which branch gets to control the issuance of passports. Under current law, that falls to the State Department and one could make the argument that the law in question is broad enough to give the department the authority to decide what information is displayed on the documents. One problem with that argument, of course, is that Congress could in theory get around such a ruling by making changing to the laws authorize the issuance of passports to take away some of the discretion that the State Department has in the area. Realistically, that would involve far more micromanaging than Congressmen and Senators are usually willing to undertake, but given the fact that the recognition of Israeli dominion over Jerusalem is such a hot button issue with some, it’s not inconceivable that such a law could pass as part of a larger funding measure that it win could be hard for the President to veto. With this ruling, the issue is settled once and for all.

One interesting question, of course, is what impact the ruling could have going forward in connection with other foreign policy disputes between Congress and the Executive Branch, such as the ongoing controversies regarding the Iran nuclear talks and President Obama’s relationship with Cuba. Congress will still retain the power of the purse and its oversight authority and the Senate still have the authority to confirm ambassadors, State Department officials, and treaties, of course, and those are powerful means by which Congress can exert influence in this area. At the same time, though, the Court’s ruling is broad enough that it could likely blunt other Congressional efforts to assert control over controversial foreign policy issues. Given the way that the Constitution parcels out authority over foreign affairs, it strikes me that this will be a largely positive development. The Founders intended that the President be able to speak for the nation as a whole on foreign affairs with a largely unified voice, and that’s basically what the Court said here today.

Photo:  “Jerusalem from mt olives” by Wayne McLean (Jgritz) – Own work. Licensed under CC BY 2.0 via Wikimedia Commons.

Here’s the opinion:

Zivotofsky v. Kerry by Doug Mataconis