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Executive branch prevails in Jerusalem passports case:  In Plain English

Shortly after his birth in Jerusalem in 2002, Menachem Zivotofsky’s parents applied for a U.S. passport for their infant son.  The two U.S. citizens exercised their right under a 2002 law to ask the State Department to designate “Israel” as Menachem’s place of birth.   The State Department turned down the family’s request: it explained that, notwithstanding the 2002 law, the U.S. government had a decades-old policy of not recognizing any country as having sovereignty over the holy city of Jerusalem.

The Zivotofskys went to court to challenge that decision, kicking off a campaign that would last almost thirteen years.  Today that battle finally ended in a victory for the federal government, with six Justices on the Supreme Court agreeing that the 2002 law is unconstitutional because it conflicts with the president’s “consistent decision” not to recognize Jerusalem as the capital of Israel.   But even while resolving this long-disputed issue, which could have affected the roughly 52,000 U.S. citizens whose passports designate their place of birth as “Jerusalem,” the Court’s ruling may have left the door open for other skirmishes between Congress and the president in the future – including with regard to changes in U.S. policy toward Cuba.  Let’s talk about today’s decision in Zivotofsky v. Kerry in Plain English.

The Court heard oral arguments in the case back in early November.  As I reported at the time, the Justices appeared closely divided.  And indeed they were, which may explain why the ruling took so long to prepare.

Justice Anthony Kennedy wrote for the Court, in an opinion that was joined in full by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.  In their view, the Constitution gives the president the exclusive power to recognize foreign sovereigns and their boundaries, and presidents have done so throughout our history.  Congress should not be allowed to interfere with that power, the majority continued, because it would impede the president’s ability to speak with one voice in deciding whether to recognize a particular country.  The 2002 law runs afoul of that exclusive power, the Court explained, because even if listing Menachem Zivotofsky’s place of birth as “Israel” would not itself formally recognize Jerusalem, it would effectively force the president to contradict his earlier statements about the government being neutral when it comes to the status of Jerusalem.  And, the Court added, Congress clearly intended to do exactly that when it passed the law, as evidenced by the statement – in one of Congress’s reports on the law – indicating that the proposed law “contains four provisions related to the recognition of Jerusalem as Israel’s capital.”

Even if the president and the executive branch won this round, though, it was not the broader constitutional triumph they might have hoped for.  The federal government had asked the Court to rule that the executive branch has extensive foreign relations powers, including the “exclusive authority to conduct diplomatic relations.”  But the Court declined to do so, on the ground that it didn’t need to answer that question to resolve this specific case.  And the Court also made clear that Congress still has a substantial role to play in foreign affairs:  even if the president has the exclusive power to recognize foreign countries, it cautioned, Congress can “express its disagreement with the President in myriad ways.  For example, it may enact an embargo, decline to confirm an ambassador, or even declare war.”  These caveats could come into play soon, in the wake of President Barack Obama’s announcement late last year that he intends to normalize relations with Cuba:  shortly after the president’s pronouncement, Senator Marco Rubio of Florida declared that he would block the confirmation of an ambassador and funding for a proposed U.S. embassy in Havana.

Chief Justice John Roberts (joined by Justice Samuel Alito) dissented from the Court’s decision today.  He described it as “a first:  Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”  And even if the president does have exclusive authority to recognize foreign sovereigns, he complained, that power doesn’t come into play in this case, because the statute doesn’t have anything to do with recognition:  it “simply gives an American citizen born in Jerusalem the option to designate his place of birth as Israel” on his passport.  The majority’s opinion, he seems to suggest, is results-driven:  his colleagues are just trying to avoid the problems that the federal government predicts will ensue if the United States is seen as “taking sides” in the Middle East conflict by allowing the U.S. passports of citizens born in Jerusalem to describe “Israel” as their place of birth.

The Chief Justice and Justice Alito also joined a dissent filed by Justice Antonin Scalia, who took the relatively rare step of expressing his displeasure with the Court’s decision from the bench this morning.  Like the Chief Justice, Justice Scalia maintained that the 2002 law “has nothing to do with recognition,” because it “does not require the Secretary [of State] to make a formal declaration about Israel’s sovereignty over Jerusalem.”  But he also evoked this country’s history more broadly – and in particular the desire of the Founding Fathers to depart from the English tradition of giving the monarch exclusive control over foreign affairs.  Rather, he emphasized, the drafters of the Constitution wanted to make clear that neither the president nor Congress has “sole power to adopt uncontradictable policies about any subject—foreign-sovereignty disputes included. “  Instead, they gave each branch “its own powers, and with that the freedom to contradict the other’s policies.”

The Court is likely to return to issue more opinions next Monday.  With the thorny Jerusalem passports issue finally out of the way, many Court watchers expect the next high-profile decision to come in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, involving the Fair Housing Act.  Stay tuned; whenever that decision and others come down, we’ll be back to cover it in Plain English.

Recommended Citation: Amy Howe, Executive branch prevails in Jerusalem passports case:  In Plain English, SCOTUSblog (Jun. 8, 2015, 9:53 PM),