Tuesday, July 23, 2013
The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem. The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.
The case will likely go (back) to the Supreme Court, this time on the merits. This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.
The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel. The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."
Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel. President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.
Zivotofsky was born in Jerusalem to U.S. citizens. His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused. The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.
The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries. The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone. (It found original intent inconclusive, however.)
It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.
The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here. The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy. The court said that this interfered with the President's power to recognize foreign countries.
The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder. The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.
(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)
Judge Tatel, concurring, came to the same conclusion, but started with the passport power. Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.