Monday, June 8, 2015
The Supreme Court today decided Zivotofsky v. Kerry, a much-awaited case raising the issue whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."
Zivotofsky was born to U.S. citizens living in Jerusalem. Pursuant to Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, his mother asked American Embassy officials to list his place of birth as “Israel” on his passport. Section 214(d) states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” The Embassy officials refused to list Zivotofsky’s place of birth as “Israel” on his passport, citing the Executive Branch’s longstanding position that the United States does not recognize any country as having sovereignty over Jerusalem. Zivotofsky’s parents brought suit on his behalf in federal court, seeking to enforce Section 214(d). The D.C. Circuit held the statute unconstitutional, concluding that it contradicts the Executive Branch’s exclusive power to recognize foreign sovereigns.
The Supreme Court affirmed, holding that the President has the exclusive power to grant formal recognition to a foreign sovereign.
Justice Kennedy delivered the opinion for the Court, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Breyer filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. Chief Justice Roberts filed a dissenting opinion, in which Justice Alito joined. Justice Scalia filed a dissenting opinion, in which the Chief Justice and Justice Alito joined.