Case of the Day: Zivotofsky v. Kerry

The case of the day is Zivotofsky v. Kerry (S. Ct. 2015). At least since US recognition of the State of Israel in 1948, the United States has never recognized the sovereignty of Israel or any other state over Jerusalem. The State Department’s practice, when issuing passports to US citizens born abroad, is to list the country of birth in the passport; but its policy is never to list a country of birth that is at odds with the US position on recognition of a foreign state. Thus when a US citizen is born in Jerusalem, the passport does not list Israel or any other country as the place of birth; instead, the passport simply lists Jerusalem as the place of birth.

The US policy on Jerusalem has been controversial in Congress for many years. In 1995 Congress passed the Jerusalem Embassy Act, which tied State Department funding to a move of the US embassy from Tel Aviv to Jerusalem, subject to the President’s ability to waive the law’s requirements. Despite the waiver requirement, President Clinton refused to sign the bill (though in a wonderful Clintonesque move, he also refused to veto it; it became law without his signature). Then in 2002, as part of the Foreign Relations Authorization Act for Fiscal Year 2003, Congress, in § 214 made a special rule for passports for US citizens born in Jerusalem:

For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

President Bush signed the bill, but in a signing statement he asserted that that provision of the bill, if construed as mandatory, would be unconstitutional. And neither his administration nor the Obama administration has implemented the law.

Menachem Zivotofsky, a US citizen, was born in Jerusalem in 2002. His parents sought unsuccessfully to have his passport give Israel as his country of birth, but the government refused. His parents sued on his behalf. The district court at first dismissed the case on two grounds. First, it held Zivotofsky lacked standing. Second, it held that the case presented a nonjusticiable political question. The D.C. Circuit rejected the district court’s holding on standing, but it agreed that the question was a political question. The Supreme Court disagreed, however, and remanded the case for a decision on the merits. The D.C. Circuit again held that the government was right, this time reaching the merits. It found the statute an unconstitutional infringement on the President’s power to recognize foreign sovereigns—the first time, apparently, that the Court has struck down a statute on such grounds.

The Supreme Court, hearing the case for the second time, affirmed. There has been a lot of good commentary on the case already. I want to comment on what seems to me to be the subtext of Justice Kennedy’s decision. It seems to me that the decision is essentially functional—Justice Kennedy emphasizes more than once the need for the nation to speak with one voice on issues of recognition. But the historical precedents he reviews show that the need for the Court’s decision this week is the result of the fact that our political leaders lack the wisdom of their predecessors.

True, President Washington recognized the French revolutionary government by receiving Citizen Genet as its ambassador without involving Congress. But in all the other examples Justice Kennedy reviewed, Congress and the President worked together even if one of them had to give way to the other. For example, President Monroe and Henry Clay were at odds about recognition of Chile and Argentina after their revolutions, yet Congress yielded to the President. President Jackson and Congress were at odds about recognition of the Republic of Texas, yet the President agreed to follow Congress’s lead. President Lincoln sought Congress’s views before recognizing Liberia and Haiti. President Carter worked with Congress when recognizing the People’s republic of China. How differently our foreign policy works today. Remember Senator Cotton’s open letter to the Iranian government, or Speaker Boehner’s invitation to Prime Minister Netanyahu to address Congress? I don’t know, but I suspect that the Court’s view might have been different if our politicians’ shenanigans didn’t make its decision functionally necessary.

There’s another aspect of this subtext. It’s not just a lack of wisdom on the part of American legislators, but also a perceived lack of wisdom and restraint in the Arab world. The Court’s opinion suggests the possible reaction to a reversal was on the justices’ minds. I could call this the “Arab world freakout hypothesis.” I don’t know if the concern is justified or not, but I understand why the Court would hold it. I recall the Arab world’s reaction when the “Arab Idol” television show identified Israel by name on a map of the Mideast. Quelle horreur! Justice Scalia may scoff at the idea that a statement in a passport of a citizen’s place of birth could cause an international incident, and there has to be a concern about giving the loudest complainers a heckler’s veto. But again, I think the Court’s decision was grounded in real-world practicalities that it clearly found difficult to ignore.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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