On Monday, the Supreme Court heard arguments for the case Zivotofsky v. Kerry which centers on the passport of a child, Menachem B. Zivotofsky, who was born to American parents in Jerusalem in 2002. As Garrett Epps notes in the Atlantic, while the outcome may practically be a single word, a decision could have massive unforeseen consequences in the balance of congressional and presidential power to conduct foreign policy.
In 2002, Congress passed the Foreign Relations Authorization Act for 2003. Section 214(d), titled “Record of Place of Birth as Israel for Passport Purposes,” directs the State Department to record Israel as the place of birth for American citizens born in Jerusalem, if the citizen or his/her legal guardian(s) ask. President Bush signed the bill but, in his signing statement, effectively invalidated part of the act by noting that this section “impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs…” Obama, too, has followed Bush’s policy stance and wrote the justices a brief, saying they should let Israelis and Arabs resolve the dispute through negotiations. After all, the Foreign Affairs Manual of the State Department clearly expresses, “For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport…Do not write Israel, Jordan, or West Bank for a person born within the current municipal borders of Jerusalem.”
The complexity of this debate is twofold: first, it is a classic collision of legislative and executive authority, on a topic of foreign affairs no less (specifically the power to recognize foreign nations); second, it runs with the classic Palestinian v. Zionist argument about who owns Jerusalem and perhaps consequently who should be living in Israel. As the Justice Department has written, changing Zivotofsky’s passport could wreak havoc in peace efforts because America would be changing its position in the dispute (it currently stands: Jerusalem is an independent zone, the “ownership” of which should be settled through diplomatic negotiations between Israelis and Arabs). It could, perhaps, also cause the 50,000+ U.S. citizens born in Jerusalem to seek to change their passports.
In 2012, Zifotovsky came before the Court. The Court ruled preliminarily that the case did not involve a “political question” beyond the federal courts’ power to decide so they sent it to US Court of Appeals for D.C. to decide. In July of 2013, the D.C. Court ruled for the executive branch – in other words, they found the Act impeded on the presidential authority to recognize foreign governments.
The Arguments – Foreign Policy Standpoint
Supporters of the Zivotofskys, who tend to be more conservative mainly because of the foreign policy issue at stake rather the constitutional issue, are interest groups like the American Jewish Committee, AIPAC, and the Anti-Defamation League; they are arguing that Jerusalem is the capital of Israel (a questionable fact – our embassy is in Tel Aviv and most European states have named Tel Aviv Israel’s capital). They are also arguing that immigration, naturalization, and passport policies fall under Congress’s purview, not the president’s. They lastly contend that changing one word on a passport won’t have too much of an impact on foreign policy.
Supporters of the administration, and executive authority overall, contend that Jerusalem is an insanely delicate part of the peace process; changing the passport could generate a ton of media attention to a policy position that may not necessarily be supported by the government now, just tangentially by our Constitution. They also argue that the power of recognizing sovereign nations is under the President’s jurisdiction, not Congress’s.
Moderate folk understand that the issue is complex and should be treated delicately but also note that Zivotofsky was born in West Jerusalem, the Jewish segment of the segregated city.
These arguments, however impactful, are not relevant in any Court procedure as foreigners’ opinions/reactions to certain actions by the government don’t make those actions any more or less constitutional. Further, the lack of amicus briefs from foreign governments perhaps proves that they understand a ruling one way or the other won’t affect US recognition status of Jerusalem and Israel.
This is not to say, however, that the decision won’t have a major impact on the Israeli-Palestinian conflict. For a more thorough explanation, read this Vox article.
The Arguments – Legal Standpoint, in a Sweeping Overview
Congress established the Department of Foreign Affairs in 1789 to deal with foreign ambassadors and ministers. The administration, in a brief, wrote a long list of president’s actions in establishing foreign policy, declaring precedent for executive authority in this realm. Essentially, it is widely understood constitutionally that the majority of foreign policy authority is granted to the president. It comes from the “sole organ” doctrine, named for a John Marshall speech in which he declared that “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” United States v. Curtiss-Wright in 1936 essentially upheld this principle.
Meanwhile, the Zivotofskys make clear that President Truman’s ability to seize control of striking steel mills was limited by a 1952 Supreme Court decision, the result of which put presidential power on a lower rung than congressional power. Senator Harry Reid took to defending the 2002 law, declaring that it is of the upmost importance to maintain congressional power over the content of identification documents held by U.S. citizens.
The first article of the Constitution, which defines the role of the legislative branch of the government, has been studied in this case to determine the role of Congress in the realm of passports. Article I doesn’t mention anything about Congress’s authority over passports. Additionally, Congress nearly always authorizes the State Department to handle passports. The laws that Congress has passed that regulate American travel falls under Congress’s foreign commerce clause power yet, unsurprisingly, many argue that designating Israel, rather than Jerusalem, on a passport doesn’t regulate persons crossing borders, including Harvard Law professor Jack Goldsmith in this article. While Congress certainly has authority to legislate in various foreign policy areas, they must fall within Congress’s jurisdiction, as described in Article I. (That being said, it’s not quite clear that this authority rests with the president either. There is, after all, no precedent for congressional or presidential authority over geography and factual claims thereof)
Likewise, requiring the State Department to record Israel on passports wouldn’t fall under the necessary and proper clause. Nor does it have anything to do with Congress’s power to “establish a uniform rule of naturalization.” Essentially, according to Goldsmith, this specific instance is highly specific and consequently ineffectual.
Goldsmith argues that, if the Court simply rules against congressional power to create the statute in the first place, it would avoid a contentious and difficult process of defining presidential power via the often vague and confusing Article II. More simply, if Congress’s statute is invalidated, the Court would avoid massively expanding or limiting presidential power at such a fragile time in the Middle East.
But of course, why this is excellent in theory, there must be some reason why “place of birth” exists on passports in the first place. And the answer is: identification. As detailed in the government’s brief, if an American citizen is encountering an emergency abroad, they are identified in cables sent to the US by their name, date, and place of birth. Place of birth simply adds another layer of identification that would distinguish an individual from others who have a similar name/birth date. These identification practices are in fact critical to helping Americans travel between states and regulating this travel is a form of Congress’s foreign commerce power, as argued by Northwestern Law professor Eugene Kontorovich writes in this post.
But I beg to differ with these arguments. First, while overseas travel is typically a part of foreign commerce, traveling during an emergency situation, the situation given by the government, is hardly a commercial endeavor. Who do you think flew refugees out of Berlin during the Air Lift? Delta? (Though, this example is a tad extreme.) Besides, the fact that the 2002 law was named “United States Policy With Respect to Jerusalem as the Capital of Israel” shows that it intends to set policy not commerce regulations. Second, Marty Lederman makes a great point in this post that if Congress had the authority to rewrite Jerusalem-born individuals’ birth place as Israel, identification would be more vague and less, well, identifying. If Jerusalem is within Israel, then simply identifying place of birth as Israel would not help at all with identification because it expands the territorial boundaries to include many more people. And this proves that the motivation of Congress in passing the 2002 law was not to identify people born in Jerusalem/Israel, but rather to assert its own power in the foreign affairs ring. Third, while Congress may have authority in certain foreign affairs fields, they certainly don’t have the authority to tell the executive branch the means by which they can conduct foreign policy.
The Recognition Issue
Various amici briefs supporting the Congress point out that the passport law doesn’t involve recognition of Jerusalem as a part of Israel. The recognition powers of the president, the ability to recognize ambassadors of nations and thus recognize those nations themselves unilaterally, have been designated, well, to the president and those that support are saying that the 2002 law does not involve recognizing those nations. The Senate’s amicus brief argues that Congress has done its business in relation to unrecognized countries. Congress has declared war on, funded, and traded with unrecognized nations. In fact, when Congress was implementing the US-Israel Free Trade Area Agreement, they authorized products from the West Bank, another disputed territory that is questionably in Israel, to be labeled as coming from that country. Likewise, in this case, it is identifying people who come from unrecognized nations. Additionally, the reasons for including the place of birth are not directed at foreign states; rather, they are directed back at the US government for internal communication. These actions are not actions of recognition. Thus, the Senate argues, the Court doesn’t have to rule on the recognition question. More posts about recognition (or lack thereof I suppose) can be found here and here.
Interestingly, Jerusalem is placed in Israel by the Interior Department, in its U.S. Board of Geographic Names – its purpose is to “provide for uniformity in geographic nomenclature … throughout the Federal Government.” Written on the Board’s database’s homepage is a disclaimer that the names are provided for guidance and are not necessarily indications of American determinations of other nations’ sovereignty.
Why is this important? First, if the Executive Branch can determine that Jerusalem is in Israel without recognition, the Congress should be able to as well. Second, the Board of Geographic Names claims the goal of naming things is “for the guidance and use” of the government. Congress’s passport law is a perfect example of Congress using the guidance of the BGN. Why else would such a database be written?
Authors of the brief lastly note that if noting that Jerusalem is in Israel is an act of recognition, then the worst form of recognition would be by the judiciary, since Congress at least has some authority over foreign policy.
Lederman partially fights back here as well. He says that for the Congress to prevail, it would have to be proven that Congress is, with their Jerusalem “place of birth” determination would be necessary and proper to carry out their recognition power (and it’s questionable, at best, if they even have this power). Lederman, however, ultimately concludes that this is not a battle about recognition, since allowing citizens to mark Israel, rather than Jerusalem, as their place of birth, does not directly endorse recognition of the idea that Jerusalem is in Israel.
I believe Lederman says it best at the end of his article, and I will post his quotation here:
Accordingly, I think it is fair to characterize Section 214(d) as, in truth (and in effect), a requirement that the Executive make official communications to foreign governments that are inconsistent with the United States’s current position on the status of Jerusalem. As such, it both fails to be a necessary and proper means of carrying into execution Congress’s power to regulate foreign commerce, and infringes upon the President’s power to determine the content of diplomatic communications with foreign governments–communications that are especially important here because they reflect the U.S. position on recognition and sovereignty.
Kagan took an odd stance. Despite saying she would remain partial in cases involving Israel, she seems to have asserted the potential diplomatic impacts of a recognition decision as part of her consideration. Kagan claimed this case was untimely, granted the tinderbox state of Israel and Palestine at the moment (and, obviously, the last 66 years of Israel’s existence).
Scalia and Alito responded justly (no pun intended) by arguing Kagan’s question and Solicitor General Donald Verrilli’s comment that ruling for Congress could significantly affect foreign policy were irrelevant, as the Court’s job was to determine the constitutionality of laws rather than craft foreign policy strategies.
Kennedy asked whether disclaimers could be added to passports that would clarify that the inclusion of Jerusalem in Israel was not an official policy stance of the executive. Alyza D. Lewin, a lawyer for the Zivotofskys, argued that that disclaimer would be alright but it would also be within Congress’s jurisdiction to request the president to remove the disclaimer (though that would likely never happen [my analysis]).
Kagan said passports are a form of diplomatic communication and Congress has no right to control their content but Lewin argued against that claim, declaring the constitutionality of a congressional requirement of the Secretary of State to send a letter to every head of state announcing an American baby had been born in Israel every time one was born in Jerusalem, a hypothetical prompt by Kagan. Roberts clarified for Lewin that passports are primarily used for identification and the letter transforms the purpose.
Thomas, of course, said nothing.
Further Reading, Etc.
Chris Edelson, Assistant Professor in the Department of Government in the School of Public Affairs at American University, takes aim at the Curtiss-Wright decision, frequently cited as the precedent for the president’s exclusive foreign policy power at the National Constitution Center’s Constitution Daily – “Zivotofsky and the integrity of the Supreme Court” – November 21, 2014