Zivotofsky v. Kerry: Choosing International Reputation over Separation of Powers

Hannah Cole-Chu

In June 2015, the United States Supreme Court decided Zivotofsky v. Kerry. In Zivotofsky, the Court considered the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which permitted a United States citizen born in Jerusalem to record the birthplace on his or her passport as “Israel.” Menachem Biyamin Zivotofsky, a United States citizen, was born in Jerusalem soon after the statute was enacted, and his parents applied for a passport and a Consular Report of Birth Abroad on his behalf. They requested that the United States Embassy record his birthplace as “Jerusalem, Israel.” The embassy refused, citing U.S. State Department policy authorizing it to designate only “Jerusalem” as the birthplace on passports of United States citizens born in Jerusalem.5 Seeking to enforce Section 214(d), Zivotofsky’s parents brought suit.

After more than a decade litigating the justiciability of Zivotofsky’s claims, the Supreme Court reached the merits of the case. Zivotofsky argued that the United States violated his statutory right to record his birthplace as “Israel” on his passport, which Congress conferred on him pursuant to its Article I lawmaking power. The United States responded that the statute was unconstitutional because it infringed on the President’s exclusive power to recognize foreign sovereigns.9 Specifically, Section 214(d) contradicted the President’s longstanding policy of neutrality over the status of Jerusalem. The Court sought to determine whether the President had the exclusive recognition power, and, if so, whether Section 214(d) of the Foreign Relations Authorization Act of 2003 infringed on that power.

Ultimately, the Zivotofsky Court struck down the statute. The majority held that the President has the exclusive power to recognize foreign sovereigns and determine recognition policy, and that Congress could not force the President to contradict formal statements of recognition. The Court reasoned that the United States must have a single recognition policy announced by “one voice,” and that voice must be the President’s. The Court determined that Section 214(d), in allowing United States citizens born in Jerusalem to record their birthplace as “Israel,” forced the President to contradict his position of neutrality as to the status of Jerusalem. For this reason, the statute was unconstitutional.