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Law School Case Brief

Zivotofsky v. Kerry - 135 S. Ct. 2076 (2015)


The text and structure of the United States Constitution grant the President the power to recognize foreign nations and governments. The question is whether that power is exclusive. The various ways in which the President may unilaterally effect recognition, and the lack of any similar power vested in Congress, suggest that it is. So, too, do functional considerations. Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These assurances cannot be equivocal.


In 2002, Manachem Zivotofsky was born in Jerusalem to parents who were United States citizens. Manachem's parents requested that the U.S. State Department record his place of birth on his passport as "Israel," in accordance with Section 214(d) of the Foreign Relations Authorization Act of 2003 (Act). The State Department refused, and instead, issued Manachem a passport that listed "Jerusalem" as his place of birth. His parents sued the Secretary of State on his behalf and sought the enforcement of Section 214(d). The district court dismissed the case on the ground that it presented a non-justiciable political question. The U.S. Supreme Court, in Zivotofsky v. Clinton, reversed that holding and remanded the case. On remand, the district court held that Section 214(d) "impermissibly intereferes" with the President's exclusive power to recognize foreign states. The U.S. Court of Appeals for the District of Columbia Circuit affirmed and held that the section goes beyond the scope of Congress's passport power to affect United States foreign policy, which is a realm that the Constitution reserves for the executive branch.


Does a federal statute that directs the Secretary of State to record the birthplace of an American citizen born in Jerusalem as "Israel," if requested to do so, impermissibly infringe on the President's power to recognize foreign states?




The Court held that, although the Constitution does not explicitly address the issue of recognition of foreign nations, the Reception Clause in Article II of the Constitution, which states that the President will receive foreign ambassadors, grants the President the power to recognize foreign states. The fact that Article II also vests the President with the power to make treaties and appoint ambassadors gives the President further control over recognition decisions. Although Congress has a role to play in other aspects of foreign policy, often by granting the President’s formal recognition practical effect, Congress has no such power to initiate international diplomacy without involving the President. Because the question of whether the American government recognizes a foreign nation must have only one answer, the President’s power is assumed to be exclusive, and therefore, Congress cannot act in a manner that contradicts Executive branch policy regarding recognition. The Court also held that precedent and history support the view that the formal recognition power belongs exclusively to the President. Because the Executive branch has maintained a neutral position by not recognizing any nation’s sovereignty over Jerusalem, the federal statute in question unconstitutionally infringes on the President’s recognition power.

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