Thursday, July 25, 2013
In an update on an earlier post, the U.S. Court of Appeals for the District of Columbia Circuit issued its latest decision in the ongoing litigation in Zivotofsky v. Secretary of State involving a dispute over which branch of the federal government controls place of birth designations on U.S. passports.
By way of background, Zivotofsky involves a power struggle between Congress and the President over recognition of Jerusalem as part of Israel. It has long been executive branch policy not to take an official position regarding the disputed territory of Jerusalem. Accordingly, when a child is born to a US parent in Jerusalem, US State Department policy forbids recording Israel as the place of birth. However, in 2002, Congress passed the Foreign Relations Authorization Act allowing US parents to request that Israel be listed on the record of birth for a child born in Jerusalem. When a parent exercised this option, the State Department refused to comply on the basis that recognition of foreign states and governments is the prerogative of the executive branch, not the legislative branch. Therefore, the executive is not bound by the statute. The federal circuit court initially refused to reach the merits of the dispute on the ground that the case presented a nonjusticiable political question. In March 2012, the US Supreme Court disagreed, holding that the political question doctrine was not applicable and sending the case back to the lower court to reach the merits.
In a decision issued earlier this week, a unanimous three-judge panel of the federal circuit court ruled that the subject section 214 of the statute is unconstitutional because it impermissibly interferes with the president's authority to recognize foreign sovereigns. The court noted that "the status of the city of Jerusalem is one of the most contentious issues in recorded history" and that US presidents had maintained a consistent policy of not prejudging the issue. Congress was attempting to alter this consistent policy. The executive branch made Congress aware that it viewed the issue as being within the exclusive domain of the president, both during consideration of the legislation and with a presidential signing statement upon enactment of the law. To determine whether the executive branch was correct, the court first examined the text and the "originalist evidence" of the Constitution, finding that they did not resolve the question. Rather, the court held that "longstanding post-ratification practice supports the Secretary's position that the President exclusively holds the recognition power." Supreme Court precedent supported this conclusion as well. The court also held that while Congress has the power to enact laws governing the issuance of passports, that power is shared with the executive, whose power trumped in this case. Accordingly, section 213 of the Foreign Relations Authorization Act is unconsitutional. The full opinion may be found here.