A 6-3 vote came down yesterday in a Supreme Court Ruling that determined that Congress cannot order the U.S. State Department to list Israel as the birthplace on passports for those that wish to have Jerusalem listed as their birthplace. This is a significant decision delineating the separation of powers between Congress and the Executive Branch.
For the last 60 years, the United States policy has been to recognize no state as having sovereignty over Jerusalem, and the Supreme Court’s ruling upheld this policy. The ruling was a victory for the Executive Branch and its power to recognize foreign states sovereignty. The Case was brought on by the parents of a 12 year old boy, Menachem Zivotofsky, who tried to list Jerusalem as his place of birth on his passport after Congress passed a law that instructed the Department of State to list Israel as the birthplace for anyone who requested Jerusalem be listed on their passport.
Legal experts have been closely watching the case eager to see how the Court would resolve the separation of powers dispute. Justice Anthony Kennedy, who wrote the opinion, held that “over the last 100 years, there has been scarcely any debate over the President’s power to recognize foreign states.” Kennedy said that it was “clear” that in the statute at issue in the case, “Congress wanted to express its displeasure with the President’s policy, by among other things, commanding the Executive to contradict his own, early stated position on Jerusalem. This Congress cannot do.”Kennedy said that the President has the exclusive power to grant formal recognition to a foreign sovereign and said that the law infringes on the Executive’s “consistent” decision to withhold recognition with respect to Jerusalem.
In dissent were Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito. Roberts, in a dissent joined by Alito, said “Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” Roberts said “the statue at issue does not implicate recognition” but “simply gives an American citizen born in Jerusalem the option to designate his place of birth as Israel for the purposes of passports and other documents.” Scalia took the rare step of reading part of his dissent from the bench, which was joined by Roberts and Alito, saying that the law at issue “merely requires the State Department to list a citizen’s birthplace as Israel” and does not require the President to make “any other kind of legal commitment.”
“Today, the Supreme Court confirmed something that lower courts and scholars had long assumed—that the power to recognize foreign governments (and their territory) resides exclusively with the Executive Branch,” said Stephen I. Vladeck, an analyst for CNN and a law professor of the American University Washington College of Law. “This is not only a landmark win for presidential power over foreign affairs, but a rather decisive loss for Congress—which passed the statute at issue entirely to thwart a half-century-old Executive Branch policy,” he said.