Separation of Powers Decides Jerusalem Passport Dispute

In Zivotofsky v. Kerry, the U.S. Supreme Court held that the power to recognize foreign states and governments is exclusive to the President. The 6-3 decision, which rested almost exclusively on the Constitution’s separation of powers, highlights that the justices often disagree over the proper balance of power between Congress and the Executive Branch.

The Facts of the Case

In 2002, Congress passed the Foreign Relations Authorization Act of 2003. 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 parents of Menachem B. Zivotofsky, who was born in Jerusalem in 2002, filed suit to enforce the foreign relations law. At the time he signed the law, President George W. Bush stated that he would not follow it because it “impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch.” President Barack Obama took the same stance based on the well-established U.S. foreign policy not to recognize the sovereignty of any state over Jerusalem.

The Majority Decision

By a vote of 6-3, the majority held that Section 214(d) of the Foreign Relations Authorization Act of 2003 infringes on the executive’s consistent decision to withhold recognition with respect to Jerusalem. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Justice Kennedy’s majority opinion.

In its opinion, the majority acknowledged the political sensitivity of the issue. “Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy,” Justice Kennedy wrote. “And indeed it is one of the most delicate issues in current international affairs.” Nonetheless, the justices concluded that the separation of powers set forth in the Constitution authorized the President to unilaterally determine the United States’ position.

The Court further concluded that allowing Congress to interfere with that power would undermine the President’s authority. “Put simply, the nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not,” the Court held.

In reaching its decision, the Court did not go so far as to establish that the Executive Branch has exclusive authority to conduct diplomatic relations. Rather, it noted that Congress may express its disagreement with the president in myriad ways, such as enacting an embargo, declining to confirm an ambassador, or even declaring war.

The Dissent

Chief Justice John Roberts issued a dissenting opinion, which was joined by Justice Samuel Alito. Justice Scalia disagreed so strongly that he announced his dissent from the bench, stating:

A principle that the nation must have a single foreign policy, which elevates efficiency above the text and structure of the Constitution, will systematically favor the president at the expense of Congress. It is possible that it will make for more effective foreign policy, perhaps as effective as that of Bismarck or King George. But it is certain that, in the long run, it will erode the structure of equal and separated powers that the people established for the protection of their liberty.