Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, the case concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. After signing the bill into law, President Bush declined to honor its terms, and President Obama has done likewise. Both have argued that the passport requirement impermissibly interferes with the President’s recognition power because it contradicts a longstanding U.S. policy not to acknowledge the sovereignty of any state over Jerusalem. The Zivotofskys appear to agree that honoring the requirement would amount to U.S. recognition of an Israeli state that includes Jerusalem, but contend that the statute is constitutional and binding on the President because Congress shares in the recognition power. Oral argument is scheduled for the fall. If you’re interested, I wrote a brief analysis of the case over at the international law blog Opinio Juris. You can read it here.
An Analysis of the Israel Passport Case, Zivotofsky v. Kerry
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Even assuming arguendo that Congress has the power to decide whether or not the US recognizes Jerusalem as part of Israel, Congress would not have the authority to delegate that power to individuals. But Congress is delegating that power to individuals by allowing people born in Jerusalem to decide whether or not Israel is to be designated as place of birth on their passports. The result is that some of these passports will recognize Jerusalem as part of Israel, and others will not. Even if Congress has the power to decide whether or not the US recognizes Jerusalem as part of Israel, Congress must either put Israel on all those passports, or none. The law is invalid without even considering the issue of congressional v. presidential power. The question that should be asked is: assuming arguendo that Congress has the power to decide whether or not the US recognizes Jerusalem as part of Israel, does Congress have the authority to delegate that power to individuals?
If Congress requires the SOS to record on a passport that Jerusalem is in Israel, that appears to be an unconstitutional effort to force the Executive Branch to engage in conduct which at least simulates a decision the Executive has the authority to refuse. I cannot see how this is anything other than an unconstitutional, Congressional invasion of an Executive prerogative.
sean s.