Wednesday, April 23, 2014

Court to Rule on Separation of Powers in Foreign Affairs

The Supreme Court agreed on Monday to hear Zivotofsky v. Kerry--or, rather, to rehear the case, this time on the merits.  The case tests congressional authority versus presidential authority in foreign affairs, in particular, the power to designate the place of birth on a U.S. passport issued to a person born to U.S.-citizen-parents overseas, in Jerusalem.  Our latest post on the case, with links to earlier posts, is here.

The case pits a federal law that requires U.S. passports issued to citizens born in Jerusalem to designate "Israel" as the country of birth against State Department regs that prohibit the designation of "Israel." 

The Court ruled in the first round, in 2012, that the case did not present a non-justiciable political question.  On remand, the D.C. Circuit struck the federal law as an intrusion on the President's power to recognize foreign nations. 

In this round, the Court will determine whether the law indeed infringes on presidential authority--a significant separation-of-powers question in the area of foreign affairs.

http://lawprofessors.typepad.com/conlaw/2014/04/court-to-rule-on-separation-of-powers-in-foreign-affairs.html

Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink

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Comments

Forget the issue of Congressional Authority v. executive authority. I think the
wrong question is being asked.

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?

Posted by: Lawrence Fafarman | May 5, 2014 5:29:47 AM

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