The Role of Foreign Perceptions in Zivotofsky v. Kerry

Posted on Categories Constitutional Law, International Law & Diplomacy, PublicTags , 1 Comment on The Role of Foreign Perceptions in Zivotofsky v. Kerry

On Monday the Supreme Court issued a long-awaited and important decision in Zivotofsky v. Kerry. This was a case about the nature of the President’s power to recognize foreign borders, and it required the Court to address the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2002, which entitled U.S. citizens born in Jerusalem to have “Jerusalem, Israel” listed on their passports as the place of birth. While the statutory entitlement may seem rather mundane, it conflicted with the Executive Branch’s longstanding policy of strict neutrality on Jerusalem’s status by suggesting that the city is located within Israeli borders. Because the Executive policy dictated that passports list only “Jerusalem,” Presidents Bush and Obama refused to implement the statute. Thus the question: Who gets to decide whether the United States will recognize Jerusalem as Israeli territory–Congress or the President?

The Court sided with the President and declared the statute unconstitutional. I wrote a post addressing one of the interesting issues in the case over at Lawfare; it’s available here.