For over two centuries, federal courts have not had occasion to adjudicate whether and to what extent Congress has the power to regulate or supersede the President’s power to decide which nations and governments the United States will officially recognize, or the President’s related power to articulate the U.S. view on which nation is sovereign over a particular disputed territory.
This longstanding judicial silence is a function of the fact that Congress has rarely if ever actually enacted a statute that has been inconsistent with the President’s foreign recognition and sovereignty determinations. But in 2002, the legislature (arguably) did so: Section 214(d) of the 2003 Foreign Relations Authorization Act purports to require the Secretary of State to record the place of birth of a U.S. citizen born in Jerusalem as “Israel” on that person’s passport “upon the request of the citizen or the citizen’s legal guardian.” This statutory directive contravenes the Executive’s decades-long practice to record the place of birth in such cases as “Jerusalem,” which reflects the United States’s official view, since the Truman Administration, that no state has sovereignty over Jerusalem, and that the status of Jerusalem must be resolved pursuant to a negotiated agreement between Israel and the Palestinians.
The constitutionality of Section 214(d) is at issue in Zivotofsky v. Kerry, a case that will be argued in the Supreme Court on Monday. It has widely been expected that in Zivotofsky the Supreme Court must finally decide which political branch has the final word on questions of recognition and U.S. views on sovereignty over disputed territory.
Zivotofsky himself, however, insists that the Court need not resolve that fundamental constitutional question, because Section 214(d) (he argues) does not in fact determine recognition, or an authoritative U.S. view on the sovereignty of Jerusalem. And notably, both the Senate and 42 members of the House, filing as amici on Zivotofsky’s behalf, agree that Section 214(d) is not a statute that formally alters the United States’s official view, as articulated by the Executive, on the status of Jerusalem.
In a blogpost this morning, Jack Goldsmith concurs with Zivotofsky (and the Senate and House amici) that the Court can and should avoid a determination on the difficult question of which branch has the last word on recognition . . . but for a reason very different from that urged by Zivotofsky. Pointing to an argument at pages 46-48 of the Solicitor General’s brief, Jack contends that Congress simply lacks any affirmative Article I authority to require the Secretary to record the word “Israel” rather than “Jerusalem” on the passport of a U.S. citizen born in Jerusalem who requests such a designation. If Jack and the SG are right about that Article I question, then that’s sufficient to resolve the case.
Responding to Jack, Eugene Kontorovich takes a page from the Senate brief: He argues that of course Congress exercised an Article I authority here–namely, the “passport power,” pursuant to which Congress can and does regulate passports in order to facilitate the overseas travel of U.S. persons, a form of “commerce with foreign nations” (art. I, sec. 8, cl. 8).
I think the SG and Jack probably have the better of the argument here.
Continue Reading »