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Jerusalem Passport Case: Pres. Can Defy Congress on Foreign Affairs

By Casey C. Sullivan, Esq. | Last updated on

The Supreme Court released only one opinion this Monday, but it's a significant one. In Zivotofsky v. Kerry, the Court held 6-3 that the President does not need to follow a law requiring the State Department to label, on passports, that American children born in Jerusalem were born in Israel.

That seems like a minor issue, but it has significant implications, beyond even the conflict between Israel and Palestine over who controls the Holy City. With Zivotosfsky, the Court affirmed that the President has exclusive power to recognize foreign sovereigns, even over congressional objections.

Zivitosfsky is often referred to as "the Jerusalem passport case." The controversy at issue stemmed from an appropriations rider passed in 2002 which instructed the State Department, part of the Executive branch, to record the place of birth as Israel on the passports of American children born in Jerusalem. The State Department had long recognized such births as having occurred solely in Jerusalem, so as to not take a side on who controls the city. Both Israel and Palestinians claim the city as their capital.

Though the appropriations bill was signed, the Jerusalem passport law was never followed, as both Presidents Bush and Obama argued that it impermissibly infringed on executive authority. The Court agreed, applying Judge Jackson's concurrence in Youngstown v. Sawyer. The opinion, written by Kennedy and joined by the Court's liberal wing and Justice Thomas, is sure to have important separation of powers implications.

If you recall from Con Law, Jackson's opinion in Youngstown established a "tripartite framework" for evaluating the constitutionality of presidential acts. Executive power is most likely to be constitutional when exercised with congressional authorization and least likely when taking measures "incompatible with the expressed or implied will of Congress."

The First Ruling of Its Kind

Here, the Executive was acting directly to contrary to Congress, thus placing him in the weakest category. However, the Court emphasized the President's "exclusive" and "conclusive" authority to receive and recognize ambassadors, and thus other nations, along with the other foreign affairs authority conferred to the executive branch. That was enough to support the President's actions in even the most nebulous category of executive authority.

The case is significant for two reasons. In terms of immediate impact, it strengthens the position that the status of Jerusalem should be resolved between Israel and Palestine, as the Obama administration had argued was necessary. More broadly, however, it significantly strengthens the President's ability to act in the face of congressional opposition. As Chief Justice Roberts wrote in his dissent, the decision is the first case to have "accepted a president's direct defiance of an act of Congress in the field of foreign affairs."

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