Zivotofsky v. Kerry

Following is the case brief for Zivotofsky v. Kerry, 576 U.S. 1059 (2015)

Case Summary of Zivotofsky v. Kerry:

  • Petitioner’s family wanted their son, born of U.S. citizens in Jerusalem, to have “Israel” listed as his birthplace on his passport, in accordance with § 214(d) of the Foreign Relations Authorization Act.
  • The American Embassy refused, based on the Executive Branch’s long-standing policy of remaining neutral regarding the sovereignty of Jerusalem.
  • Petitioner and his family sued to enforce the statute in federal court.
  • The D.C. Circuit Court of Appeals ultimately held that the statute was unconstitutional because the President has the exclusive right to recognize a foreign government.
  • The U.S. Supreme Court affirmed.  It held that the President has the exclusive power to recognize a foreign state based on the text and structure of the Constitution, as well as the history of the President’s authority in the field.

Zivotofsky v. Kerry Case Brief

Statement of the Facts:

Section 214(d) of the Foreign Relations Authorization Act states that 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.”

Petitioner Zivotofsky was born to U.S. citizens living in Jerusalem.  His mother asked the American Embassy officials to list his place of birth as “Israel” on his passport.  The Embassy refused to do so, noting the Executive Branch’s longstanding position that the U.S. does not recognize Israel as having sovereignty over Jerusalem.  Petitioner’s parents brought suit in federal court to enforce § 214(d) of the Act.

Procedural History:

  • The District Court dismissed the case, finding that it was a nonjusticiable political question.
  • The D.C. Circuit Court of Appeals affirmed the District Court’s political question determination.
  • The U.S. Supreme Court granted certiorari, vacated the judgment, and remanded the case, finding that a court could determine the constitutionality of a statute.
  • On remand, the D.C. Circuit Court of Appeals held that the Act was unconstitutional because the President has the exclusive power to recognize a foreign sovereign.
  • The U.S. Supreme Court again granted certiorari.

Issue and Holding:

Is § 214(d) unconstitutional because it encroaches on the President’s power to recognize a foreign sovereign?  Yes.

Judgment:

The decision of the D.C. Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

The President has the exclusive power to recognize a foreign state.

Reasoning:

When the President’s action is inconsistent with Congress’ will, the President can prevail if the President has exclusive and conclusive power under the Constitution on the issue.  The Constitution’s text, and its structure, grant the President the power to recognize foreign nations and governments.  That power is found under the Reception Clause (in which the President receives Ambassadors and other Public Ministers), under the Article II power to negotiate treaties, and under the power to engage in direct diplomacy with foreign heads of state.

Further, the country must speak with one voice regarding which governments the U.S. views as legitimate, and only the President has the characteristic of unity at all times.  Court precedent also indicates that the President has the exclusive prerogative to recognize foreign states.  Finally, history has demonstrated Congress’s acceptance of the President’s exclusive recognition power.

Given all of the above, § 214(d) infringes on the President’s exclusive authority and is, therefore, unconstitutional.  Moreover, the unconstitutionality is clear because the purpose of the Act was specifically to infringe on the President’s exclusive recognition power.

Concurring and Dissenting Opinions:

Concurring Opinion (Breyer):

The case presents a political question inappropriate for judicial resolution.  Yet, because Court precedent finds otherwise, the lower court’s decision should be affirmed.

Concurring in Part, Dissenting in Part (Thomas):

The Court is correct to find that § 214(d) is unconstitutional with regard to passports.  However, with regard to consular reports of birth abroad, § 214(d) poses no constitutional problem.  That is because consular reports were developed to effectuate the naturalization laws, and those laws are within the purview of Congress.

Dissenting Opinion (Roberts):

Never before has the Court allowed a President to directly defy an Act of Congress in the arena of foreign affairs.  In fact, the Court previously stated that the President’s power is at its lowest ebb when exercised in direct contravention of the will of Congress.  The Constitution does not provide the “conclusive and preclusive” power needed to justify the President’s defiance of an express Act of Congress.

Dissenting Opinion (Scalia):

The Constitution divides responsibility for foreign affairs between the Executive and Legislative branches.  Using the Recognition Power as the reason to find the President’s exclusive power in this case is incorrect and short-sighted.  Further, § 214(d) is not a national commitment accepting Israel’s sovereignty over Jerusalem.  The statute can exist at the same time the President prefers neutrality about the status of Jerusalem.

Significance:

Zivotofsky v. Kerry is a milestone case because of what Chief Justice Roberts said in dissent – for the first time in the country’s history, the Court allowed the President to do something in direct defiance of an Act of Congress.  That changes the balance with regard to separation of powers in possibly a significant way.

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments

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