Zivotofsky v. Kerry

PETITIONER:M. B. Z., By His Parents and Guardians, Ari Z. Zivotofsky, et ux.
RESPONDENT:John Kerry, Secretary of State
LOCATION: Shaare Zedek Hospital

DOCKET NO.: 13-628
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 576 US (2015)
GRANTED: Apr 21, 2014
ARGUED: Nov 03, 2014
DECIDED: Jun 08, 2015

Donald B. Verrilli, Jr. – Solicitor General, Department of Justice, for the respondent
Alyza D. Lewin – for the petitioner

Facts of the case

In 2002, Manachem Zivotofsky was born in Jerusalem to parents who are United States citizens. Manachem’s parents requested that the U.S. State Department record his place of birth on his passport as “Israel,” in accordance with Section 214(d) of the Foreign Relations Authorization Act of 2003 (Act). The State Department refused and instead issued Manachem a passport that listed “Jerusalem” as his place of birth. His parents sued the Secretary of State on his behalf and sought the enforcement of Section 214(d). The district court dismissed the case on the grounds that it presented a non-justiciable political question. The U.S. Supreme Court, inZivotofsky v. Clinton, reversed that holding and remanded the case. On remand, the district court held that Section 214(d) “impermissibly intereferes” with the President’s exclusive power to recognize foreign states. The U.S. Court of Appeals for the District of Columbia Circuit affirmed and held that the section goes beyond the scope of Congress’s passport power to affect United States foreign policy, which is a realm the Constitution reserves for the executive branch.


Does a federal statute that directs the Secretary of State to record the birthplace of an American citizen born in Jerusalem as “Israel,” if requested to do so, impermissibly infringe on the President’s power to recognize foreign states?

Media for Zivotofsky v. Kerry

Audio Transcription for Opinion Announcement – June 08, 2015 (Part 1) in Zivotofsky v. Kerry
Audio Transcription for Oral Argument – November 03, 2014 in Zivotofsky v. Kerry

Audio Transcription for Opinion Announcement – June 08, 2015 (Part 2) in Zivotofsky v. Kerry

Antonin Scalia:

As you’ve heard, I filed an opinion that the Chief and Justice Alito have joined.

Before this country declared independence the Law of England entrusted the king with exclusive power over his kingdom’s foreign affairs, but when they organized our government the people of the United States had other ideas.

They considered a structure of balanced competing powers essential to the preservation of just government and international relations form no exception to that principle.

The people therefore adopted a Constitution that divides responsibility for foreign affairs between Congress and the President.

Hence, Congress has powers over war, the military, foreign commerce, naturalization and more.

The Court holds today that the Constitution makes the President alone responsible for the recognition of foreign sovereigns.

That is a difficult question of constitutional law on which the text is silent, precedent is contradictory, and history is ambiguous.

I am not sure the Court’s resolution of this issue is correct.

I am sure however that its resolution of this issue is beside the point.

The Jerusalem Passport Law has nothing to do with recognition.

Recognition is more than the announcement of a policy or the taking of a position about sovereignty.

It is the making of a formal commitment under international law accepting a country as a state, a regime as its government, or a piece of land as part of its sovereign territory.

It is abundantly clear however that the Jerusalem Passport Law does not make and does not require the President to make this or any kind — any other kind of legal commitment.

It merely requires the State Department to list a citizen’s birthplace as Israel, and that to only when the citizen requested.

Unlike an Act of Recognition, a birthplace designation on a passport has no effect whatever under international law.

Prescribing it cannot possibly be thought to invade the President’s recognition power.

To be sure the Passport Law display symbolic support for Israel’s claim to Jerusalem, support the President does not wish to join, but that does not make it unconstitutional.

The Constitution does not prohibit Congress from using its ordinary legislative powers to take sides in foreign disputes over sovereignty.

Consider Iraq’s invasion of Kuwait in 1990, which prompted Congress to authorize the use of military force, setting off the Gulf War.

Congress’ decision plainly reflected support for Kuwait’s claim to its territory, just as the Passport Law reflects support for Israel’s claim to Jerusalem, but does anybody think that Congress invaded the President’s powers by authorizing the Gulf War?

And if Congress may use its war powers to support one side or another in a territorial dispute, why not its passport powers too?

The Court concedes that the President’s exclusive power stretches no further than the formal Act of Recognition, and it also concedes that writing Israel in a passport is not a formal Act of Recognition.

You would think that these concessions would require the court to rule in favor of Zivotofsky.

But that is where today’s deus ex machina descends from above.

Congress, the Court tells us, may not require the President himself or his agents to take actions in official documents that appear to contradict his recognition decisions.

This principle may sound like it has been custom-made for this case.

That’s because it has been.

It has no precedent.

Congress and the President are coordinate branches of government.

For that reason the President’s neutrality about Jerusalem for purposes of recognition does not and cannot preempt Congress’ decision to treat Jerusalem as part of Israel for purposes of passports.

Antonin Scalia:

And the State Department has to follow Congress’ prescription regarding passports, whether the President likes it or not, just as the Bureau of Customs would have to write invoices taxing imports from Jerusalem as imports from Israel, whether the President likes it or not.

The President has the obligation to take care that all constitutional laws be faithfully executed, not just those that accord with his foreign policy preferences.

The tragedy of today’s decision is not its result, it is no great loss to the country, though it may be to Zivotofsky that his son cannot have Israel listed as his birthplace, but the tragedy is the principle that produces that result.

The Court’s insistence on striking down the Jerusalem Passport Law does not rest on text or history or precedent; it instead comes down to the Court’s perception that, and I quote from the opinion, “the nation must have a single policy” about the status of Jerusalem.

Who says so?

The text and structure of the Constitution divide responsibility for foreign policy, like responsibility for just about everything else between two coordinate equal political branches.

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.

I respectfully dissent.