In a set of opinions that spans more than 90 pages, took more than seven months to write, references places from Liberia to Cuba to Taiwan to Montreal to Hispaniola, and then ranges across U.S. history from Alexander Hamilton to George W. Bush, the Supreme Court’s opinion in a much-awaited presidential powers case, Zivotofsky v. Kerry, proves that when it comes to frolicking in the deep end of text, history, and statutory construction, nobody does it like a justice does it. By a 6–3 margin, with Justice Anthony Kennedy joining with the court’s liberals and—in part—Justice Clarence Thomas, the court found that Section 214(d) of the Foreign Relations Authorization Act was unconstitutional.
Congress passed the law, allowing U.S. citizens born in Jerusalem to list their place of birth as “Israel,” back in 2002, when George W. Bush was president. Like every president since the Truman era, Bush took the position that in order to be an honest broker for peace in the region, the question of who was in charge of Jerusalem required neutrality. He therefore issued a signing statement indicating that he would not enforce that provision. Thus the State Department still requires that Americans born in that city must have merely “Jerusalem,” and not “Jerusalem, Israel” or “Israel,” on their U.S. passports. “For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport,” the State Department's Foreign Affairs Manual instructs. “Do not write Israel, Jordan, or West Bank for a person born within the current municipal borders of Jerusalem.” President Obama has taken the same position.
Menachem Zivotofsky, who is now 12 years old, was born in Jerusalem to American parents in 2002. His parents sought to have his U.S. passport read “Jerusalem, Israel” under the 2002 law. The State Department wrote only “Jerusalem” on the document. The Zivotofskys sued, and this case is on its second trip to the Supreme Court. The constitutional question is whether Congress or the president gets final say on the sovereignty of foreign places. And if the president gets final say, did Congress intrude on his powers? A majority of the justices gave the president the big win.
Kennedy opens by acknowledging that the case touches on incredibly fraught foreign policy matters that make him anxious. “A delicate subject lies in the background of this case. That subject is Jerusalem,” he begins. “Questions touching upon the history of the ancient city and its present legal and international status are among the most difficult and complex in international affairs.” Thus, the most closely watched Supreme Court case of the decade in the Middle East opens and closes with the pronouncement that this is not about you. It’s about us.
Kennedy then launches into a lengthy discussion of separation of powers and U.S. constitutional history and the nature of the president’s recognition power. He eventually locates it in, among other places, the Reception Clause of Article II, which directs that the president “shall receive Ambassadors and other public Ministers.” After much discussion, Kennedy concludes that: “Recognition is a topic on which the nation must speak … with one voice. … That voice must be the President’s.”
Kennedy acknowledges that this is a kind of novel problem: “No single precedent resolves the question whether the President has exclusive recognition authority and, if so, how far that power extends.” But after surfing through both history and text, he concludes that, “Albeit limited, the exclusive recognition power is essential to the conduct of Presidential duties. The formal act of recognition is an executive power that Congress may not qualify.” The pattern Kennedy lays out is that the president may choose to check in with Congress, but that by and large, “over the last 100 years, there has been scarcely any debate over the President’s power to recognize foreign states.”
Because Section 214(d) “directly contradicts” the “carefully calibrated and longstanding Executive branch policy of neutrality toward Jerusalem,” the majority then finds it unconstitutional. “If the power over recognition is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s statements.” This is not as much exclusive authority as the president sought in this case. But it’s a lot.
Justice Stephen Breyer pens a brief concurrence to state only that he agrees with the majority but continues to think this is a political question beyond the judicial branch’s capacity to decide. And Thomas, who has long been a proponent of a strong executive branch, concurs with the Kennedy opinion only with respect to the passport provision, but not when it comes to those provisions that deal not with passports but with reports from the consulate about foreign births.
Enter Chief Justice John Roberts with a brief, polite dissent (joined by Justice Samuel Alito) to bemoan the scope of the majority’s decision: “Today’s decision is a first,” he writes. “Never before has this Court accepted a President’s direct defiance of an act of Congress in the field of foreign affairs.” In sum, although the president has authority over recognition Roberts says he is “not convinced that the Constitution provides the ‘conclusive and preclusive’ power required to justify defiance of an express legislative mandate.”
It’s Justice Antonin Scalia who really brings out the big guns, in the principal dissent. It was Scalia who said to the Zivotofskys’ lawyer at oral argument that this policy does not implicate recognition powers. Instead, he said, it “just has an effect on the State Department's desire to make nice with the Palestinians.” In an unusual move, Scalia read his dissent from the bench.
Scalia’s main conclusions? Deciding what to put on a passport “has no effect whatsoever on international law. Prescribing it cannot possibly be thought to invade the President’s recognition power.” He notes that “the political branches of our Government agree on the real-world fact that Israel controls the city of Jerusalem. They disagree, however, about how official documents should record the birthplace of an American citizen born in Jerusalem.” He urges that notations in passports do not fix foreign policy. “Granting a request to specify ‘Israel’ rather than ‘Jerusalem’ does not recognize Israel’s sovereignty over Jerusalem, just as granting a request to specify ‘Belfast’ rather than ‘United Kingdom’ does not derecognize the United Kingdom’s sovereignty over Northern Ireland.”
Scalia doesn’t agree that the statute does anything that forces the president to do anything: “whatever else §214(d) may do, it plainly does not make (or require the President to make) a commitment accepting Israel’s sovereignty over Jerusalem.” But Scalia is only just warming up: “So requiring imports from Jerusalem to be taxed like goods from Israel is fine, but requiring Customs to issue an official invoice to that effect is not? Nonsense.” And he calls out the court for being political: “In the end, the Court’s decision does not rest on text or history or precedent. It instead comes down to ‘functional considerations’—principally the Court’s perception that the Nation ‘must speak with one voice’ about the status of Jerusalem.” Finally, he cautions: “It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty.” Scalia also reserves a special swipe for Thomas’ concurrence, which, he claims, “produces a presidency more reminiscent of George III than George Washington.”
This decision announces a fairly dramatic new rule with respect to exclusive executive power, and it cannot go unremarked that some of the biggest proponents of a powerful executive branch back in the Guantánamo era are now horrified at the prospect, while those who were anxious about an imperial George Bush appear to be more sanguine about a powerful Obama. More pointedly, as much as the justices may wish it weren’t so, the fight over neutrality in Jerusalem, and their own attempt to stay neutral on the issue today, will continue to inform the tremendous Palestinian-Israeli tension over the status of Jerusalem and highlight the growing strain between Prime Minister Benjamin Netanyahu and President Obama.
At oral argument last November, Justice Elena Kagan, who sided with the Obama administration, warned that it was dangerous for Congress to wade into Middle East politics: “History suggests,” she observed, “that everything is a big deal with respect to the status of Jerusalem. And right now, Jerusalem is a tinderbox because of issues about the status of and access to a particular holy site there.”
None of that will change with today’s ruling, although Menachem Zivotofsky has lost his bid to list “Israel” as his birthplace on his passport. As Scalia observes, a court deciding who gets to decide about Jerusalem is wading into the same tinderbox it was trying to avoid.