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Supreme Court Overturns Congress on Jerusalem Passport Law

Supreme Court Overturns Congress on Jerusalem Passport Law

Bottom Line: Supporters of Israel need a more supportive President.

The Supreme Court decided the much-anticipated Zivotofsky case, involving a congressional law which permitted American citizens born in Jerusalem to choose to list “Israel” as their place of birth, rather than just “Jerusalem,” as the State Department mandated.  (Full Opinion here.)

Needless to say, the case had enormous political implications, even if the legal issue itself was not particularly political.  The Executive Branch refuses to recognize Jerusalem as the capital of Israel, or even though Israel has declared Jerusalem to be its capital both when it was divided prior to 1967, and after it was reunited in 1967.  Worse still, for passport purposes it does not even recognize Jerusalem as part of Israel at all.

The political gloss is that the Executive Branch claims the issue should be subject to negotiations, but the reality is that the State Department fears backlash from the Palestinians and Israel-hating nations (i.e., most of the United Nations) should it side with Israel’s claim to Jerusalem as its capital.

Congress, on the other hand, is in sync with American domestic public opinion, which is overwhelmingly pro-Israel, so in 2002 Congress passed a law to force the State Department’s hand on the issue.

The next year, Menachem B. Zivotofsky was born and his parents wanted his passport to record Israel as his place of birth.

No way, said the State Department, leading to litigation culminating in the current decision holding that the law violated the separation of powers, which vests the ability to recognize foreign sovereigns only in the Executive Branch, the Court held.

ScotusBlog summarizes the ruling:

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.

The Court claimed to limit the reach of its decision:

In holding §214(d) invalid the Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular. This case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds. Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports.

In reality, this was a huge victory for Separation of Powers in favor of Executive Branch authority, as Jonathan Adler pointed out at Volokh Conspiracy.

Chief Justice Roberts noted the unprecedented nature of the ruling:

Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs. We have instead stressed that the President’s power reaches “its lowest ebb” when he contravenes the express will of Congress, “for what is at stake is the equilibrium established by our constitutional system.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637–638 (1952) (Jackson, J., concurring).

JUSTICE SCALIA’s principal dissent, which I join in full, refutes the majority’s unprecedented holding in detail. I write separately to underscore the stark nature of the Court’s error on a basic question of separation of powers….

Resolving the status of Jerusalem may be vexing, but resolving this case is not. Whatever recognition power the President may have, exclusive or otherwise, is not implicated by §214(d). It has not been necessary over the past 225 years to definitively resolve a dispute between Congress and the President over the recognition power. Perhaps we could have waited another 225 years. But instead the majority strains to reach the question based on the mere possibility that observers overseas might misperceive the significance of the birthplace designation at issue in this case. And in the process, the Court takes the perilous step—for the first time in our history—of allowing the President to defy an Act of Congress in the field of foreign affairs.

Justice Scalia hammered home the mushy quasi-political nature of the majority opinion:

In the end, the Court’s decision does not rest on text or history or precedent. It instead comes down to “functional considerations”—principally the Court’s perception that the Nation “must speak with one voice” about the status of Jerusalem. Ante, at 11 (ellipsis and internal quotation marks omitted). The vices of this mode of analysis go beyond mere lack of footing in the Constitution. Functionalism of the sort the Court practices today will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty….

Under the Constitution they approved, Congress may require Zivotofsky’s passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President’s preference for neutrality about the status of Jerusalem.

The moral of the story is that elections have consequences. And when it comes to foreign affairs presidential elections have more consequence than congressional elections.

It is absurd that the U.S. does not recognize Jerusalem as Israel’s capital. That will be a political issue in the 2016 campaign, and thereafter as campaign promises in the past to move the U.S. Embassy have not survived.


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Captain Keogh | June 8, 2015 at 6:15 pm

There is always one SCOTUS judge, appointed by a Republican president and an alleged conservative – who allows disappoints. Clarence Thomas voted with the majority.That ****** is dead in my eyes.

    Ragspierre in reply to Captain Keogh. | June 8, 2015 at 6:27 pm

    Well, you should resurrect him. That was a perfectly proper decision, following the Constitution.

    You want a different outcome? Elect a Conservative president with some orbs.

    9thDistrictNeighbor in reply to Captain Keogh. | June 8, 2015 at 6:29 pm

    Use of asterisks does not really mask the absolute rudeness of your comment. Do you really wish the Justice ill because you disagree with his vote?

    Estragon in reply to Captain Keogh. | June 8, 2015 at 11:50 pm

    I disagree with this decision, but Thomas has been a stalwart of conservative jurisprudence since taking his seat on the Court.

    Those who expect 100% agreement with their personal political opinions, from judges, elected officials, or other people in their party are bound to be disappointed on a regular basis. And they deserve to be, because they are idiots.

not happy with the outcome but expected it because it was right.
whats wrong is not recognizing jerusalem as part of israel.
IOW its a deeper problem than this one case.

Humphrey's Executor | June 8, 2015 at 10:58 pm

Scalia’s dissent once again reveals the double standard applied to all things Israel. He recounts the numerous instances where congress has designated disputed territory as belonging to this or that country — or not– for trade or other purposes entirely unrelated for formal “recognition.” In the end the majority established a really bad precedent over something of very little substance.

We should recognize Jerusalem as the capital designated by the host country, as we do in every other country in the world. Of course our embassy should be there. If Arabs don’t like it, too bad for them. We passed the Jerusalem Embassy Act in 1995; it is time to stop using waivers to stop the move.

And we should further turn our oceanfront embassy in Tel Aviv into a luxury hotel with profits donated to the victims of terrorism.

America’s 1st Jewish PotUS Keeps Jerusalem Off Passports, SCotUS Cites Separation of Powers

The plaintiff’s entire case was disingenuous. If the point of this law was not to establish it as US policy that Jerusalem is part of Israel, but merely to humor a few people who want a vanity passport, then why is it such a big deal that it was struck down? Why was all this effort put into defending the law, and why does anyone care that the effort failed? Why has the case attracted so much attention?

No, it’s clear that everyone who participated in this case, and everyone reporting on it, believed that Congress was trying to set US policy on this matter. And everyone seems to agree that it can’t do that.

Jerusalem is Israeli territory, and the US should recognise that fact. It should have recognised it in 1948, and every president since then—including Ronaldus Maximus—is guilty for not doing so. But that doesn’t justify bypassing the president. All we can legitimately do is hope that President Walker will finally do the right thing and tell the state department to go jump in the lake.

Justice Scalia’s dissent is worth reading. As usual Justice Scalia has brilliantly and expertly torn apart a Supreme Court decision more political than legal with a scholarly and deep analysis of why the majority in this case was legally wrong (and some very good one line pans of his colleagues political decision). Scalia provides a long catalog of cases in which Congress has legislated in foreign affairs. The court’s grant of powers to the president, including the power to ignore a statute (which he has taken an oath to faithfully execute), opens the door to this largely lawless president to do what he wants to do, whether Congress or the country concur. While I don’t always agree with Scalia’s positions, his opinions are a joy to read, intellectually and legally sharp and beautiful pieces of legal work.

The administrations’ refusal to recognize Jerusalem as Israel’s capital all these years is even more severe than most people realize.
It effectively denies recognition even of the parts of Jerusalem that were under Israeli rule pre-1967 (i.e. from independence until the Six-day War).
So even the administration claim of recognizing the 1949 cease fire line, commonly mis-stated as the “1967 borders”, is effectively in doubt.

    Milhouse in reply to openeyes. | June 10, 2015 at 10:36 am

    Why is this a surprise to you? Official US policy since 1949 has been that Jerusalem is not part of any country, but is international territory as proposed in the UN’s 1947 partition plan. (It needs to be constantly emphasized that the 1947 plan was not a legal determination, but merely a proposal that was never implemented. And that the 1949 armistice explicitly provided that the Green Line was not to be a legal border.)