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The Article I argument in Zivotofsky

For over two centuries, federal courts have not had occasion to adjudicate whether and to what extent Congress has the power to regulate or supersede the President’s power to decide which nations and governments the United States will officially recognize, or the President’s related power to articulate the U.S. view on which nation is sovereign over a particular disputed territory.

This longstanding judicial silence is a function of the fact that Congress has rarely if ever actually enacted a statute that has been inconsistent with the President’s foreign recognition and sovereignty determinations.  But in 2002, the legislature (arguably) did so:  Section 214(d) of the 2003 Foreign Relations Authorization Act purports to require the Secretary of State to record the place of birth of a U.S. citizen born in Jerusalem as “Israel” on that person’s passport “upon the request of the citizen or the citizen’s legal guardian.”  This statutory directive contravenes the Executive’s decades-long practice to record the place of birth in such cases as “Jerusalem,” which reflects the United States’s official view, since the Truman Administration, that no state has sovereignty over Jerusalem, and the longstanding position of the U.S. that the status of Jerusalem must be resolved pursuant to a negotiated agreement between Israel and the Palestinians.

The constitutionality of Section 214(d) is at issue in Zivotofsky v. Kerry, a case that will be argued in the Supreme Court on Monday.  It has widely been expected that in Zivotofsky the Supreme Court must finally decide which political branch has the final word on questions of recognition and U.S. views on sovereignty over disputed territory.

Zivotofsky himself, however, insists that the Court need not resolve that fundamental constitutional question, because Section 214(d) (he argues) does not in fact determine recognition, or an authoritative U.S. view on the sovereignty of Jerusalem.  And notably, both the Senate and 42 members of the House, filing as amici on Zivotofsky’s behalf, agree that Section 214(d) is not a statute that formally alters the United States’s official view, as articulated by the Executive, on the status of Jerusalem.

In a blogpost this morning, Jack Goldsmith concurs with Zivotofsky (and the Senate and House amici) that the Court can and should avoid a determination on the difficult question of which branch has the last word on recognition . . . but for a reason very different from that urged by Zivotofsky.  Pointing to an argument at pages 46-48 of the Solicitor General’s brief, Jack contends that Congress simply lacks any affirmative Article I authority to require the Secretary to record the word “Israel” rather than “Jerusalem” on the passport of a U.S. citizen born in Jerusalem who requests such a designation.  If Jack and the SG are right about that Article I question, then that’s sufficient to resolve the case.

Responding to Jack, Eugene Kontorovich takes a page from the Senate brief:  He argues that of course Congress exercised an Article I authority here–namely, the “passport power,” pursuant to which Congress can and does regulate passports in order to facilitate the overseas travel of U.S. persons, a form of “commerce with foreign nations” (art. I, sec. 8, cl. 8).

I think the SG and Jack probably have the better of the argument here.

[Disclosure:  I worked in the Department of Justice both when Congress was considering Section 214(d) and during early stages of the Zivotofsky litigation, and had some involvement in the case long before it reached the Supreme Court.  I don’t have any interest in the outcome of the case, however, and offer my views here solely in my academic capacity.]

The Solicitor General and Jack concede, as they should, that Congress has extensive authority under the Foreign Commerce Clause to regulate the overseas travel of U.S. persons, and that regulation of the passport, in particular, has long been an important incident of such congressional authority.  Indeed, there are three leading Supreme Court cases–Kent v. Dulles, Zemel v. Rusk and Haig v. Agee–that collectively establish Congress’s authority to supersede the President’s determinations of who should, and who should not, be permitted to travel overseas . . . and thus who may or may not be issued a passport, which is effectively a “ticket” for such international travel.

Moreover, for similar purposes of regulating foreign travel–and of facilitating accurate communications between the United States and overseas consular officials relating to U.S. travelers–Congress can, for example, require passports to be machine-readable and tamper-resistant, and prohibit making false statements in applying for a passport.

So what about the content of the passport–in particular, the “place of birth” line?  Why can’t Congress similarly regulate that?, asks Eugene Kontorovich.  After all, the “place of birth” specification on the passport assists foreign and State Department officials in identifying the passport holder and distinguishing him from other persons with similar names and/or dates of birth. This in turn helps the traveler by facilitating confirmation of his identity (or protecting him from being defrauded).  “That is all clearly part of foreign travel, and thus regulating the manner of identification is necessary to the foreign commerce power,” Eugene concludes.

All of which is correct.  And therefore Congress arguably does have Article I authority to impose some regulations involving the content of U.S. passports–in particular, to insist that certain information be included in the passport to facilitate the more efficient and accurate identification of the traveler (or exposure of fraud) on the part of both U.S. and foreign consular officials.  (It’s hard to imagine, however, that the Executive would ever assert any constitutional objections to a requirement of including such true, identifying information.)

But–and here’s the important point–Section 214(d) doesn’t do anything of the sort.  Instead, it would (if enforced) eliminate certain identifying information that is currently included on the passports of U.S. citizens born in Jerusalem.  Today, for example, Menachem Binyamin Zivotofsky’s passport informs consular officials that he was born in Jerusalem.  If he were to prevail in his lawsuit, however, his passport would only tell officials that he was born in “Israel,” information that is less specific, and less informative, than what currently appears on his passport, and thus less helpful in distinguishing him from other U.S. citizens named Menachem Binyamin Zivotofsky.*

This simply demonstrates what everyone understands–namely, that Congress enacted Section 214(d) not to advance any of the legitimate Article I objectives that are the basis for its other passport regulations, but instead to force the Executive branch itself to say something to foreign officials inconsistent with what the Executive branch would (and does) otherwise say–and indeed, inconsistent with the official view of the U.S. government of an important and sensitive issue of sovereignty.  (The passport is, and is understood to be, a form of official government speech.  As the Court explained in Haig, it is, at a minimum, “a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer.”  Thus, every U.S. passport, including Zivotofsky’s, states at the very outset:  “The Secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection.”).

If the Court rules for Zivotofsky, foreign audiences will reasonably understand the word “Israel” on the passports of thousands of U.S. citizens born in Jerusalem to be a statement on behalf of the United States that Jerusalem has (and/or ought to have) sovereignty over that city.  And that would, of course, be precisely the effect Congress expressly designed the statute to accomplish:  Section 214 is, after all, entitled “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.”**

Thus, it is true, as Eugene notes, that Congress has a substantial “passport power” under Article I, and also that Section 214(d) is, quite literally, a regulation of passports.  Even so, as the SG puts the point in his brief, Section 214(d) “bears so little resemblance to the passport regulations Congress has traditionally enacted that it can fairly be characterized as ‘passport legislation’ only in the sense that it uses passports as a vehicle to achieve a recognition-related objective”–rather than one of the objectives (such as regulation of foreign travel or other foreign commerce) specified in Article I.

Even if Jack and the SG are right about the “passport power” Article I question, however, that might not necessarily quite resolve the Zivotofsky case, for two reasons.

First, one can imagine the argument that Congress has an implicit constitutional authority to regulate Executive diplomacy, as such–i.e., to specifically and directly instruct the President (and Executive officials) what to say, or what not to say, to foreign audiences.  I don’t think such authority is within Congress’s power, basically for the reasons explained in Part III of this OLC opinion.  That does not mean that Congress lacks any authority to determine U.S. foreign relations, or to take steps that could indirectly make the President’s diplomacy less effective.  As the OLC opinion explains, “Congress quite clearly possesses significant article I powers in the area of foreign affairs, including with respect to questions of war and neutrality, commerce and trade with other nations, foreign aid, and immigration”; and the Senate also has the power not to consent to a treaty negotiated by the President.  “As ample precedent demonstrates, however, Congress’s power to legislate in the foreign affairs area does not include the authority to attempt to dictate the modes and means by which the President engages in international diplomacy with foreign countries.”

Zivotofsky does not argue otherwise–that is to say, he does not argue that Congress could, by legislation, require the Executive to conform to a script in its communications abroad, let alone a script that is inconsistent with the official recognition and sovereignty positions of the United States.  Especially in the absence of such an argument, the Court is unlikely to hold that Congress has such a power to directly control the content of the President’s diplomacy.

Finally, what about the recognition power itself?  After all, if Congress has the power to override the President’s recognition/sovereignty determinations, shouldn’t it also be able to insist that passports reflect Congress’s prevailing determination of, e.g., the United States position on which nation is sovereign of Jerusalem?  In that case, regulation of the passport “place of birth” line might be said to be necessary and proper to carry into execution Congress’s recognition power.

Perhaps, except for two things.  First, of course that argument could not prevail unless the Court were to reach the question that Zivotofsky and the Senate and House amici, and Jack, urge the Court to avoid if possible . . . and to rule that Congress has the power to override the Executive’s recognition determinations.

But more to the point, the Court does not have to resolve that substantive question, precisely because–as Zivotofsky and the Senate and the House amici (and, for some reason, the State of Texas) all agree–Congress has not purported to actually overturn, as a matter of law and official U.S. practice, the longstanding position of the United States that no nation is sovereign over Jerusalem.  As the Senate brief puts the point:  “[P]ermitting U.S. citizens born in Jerusalem to choose to list ‘Israel’ as the place of birth on their passports under section 214(d) does not effectuate the recognition of any nation’s claim to sovereignty over Jerusalem, nor infringe upon the Executive’s decision not to recognize any nation’s sovereignty over Jerusalem.”

Because Congress has not in fact purported to exercise any alleged legislative power to “recognize” the true sovereign of Jerusalem–indeed, has disclaimed any such formal legal action–the Section 214(d) requirement could not be a necessary and proper means of carrying into operation Congress’s recognition power, even if one were to assume, for the sake of argument, that Congress had such a power and that it trumps the President’s own recognition power.

Accordingly, I think it is fair to characterize Section 214(d) as, in truth (and in effect), a requirement that the Executive make official communications to foreign governments that are inconsistent with the United States’s current position on the status of Jerusalem.  As such, it both fails to be a necessary and proper means of carrying into execution Congress’s power to regulate foreign commerce, and infringes upon the President’s power to determine the content of diplomatic communications with foreign governments–communications that are especially important here because they reflect the U.S. position on recognition and sovereignty.

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* That’s one important reason why Eugene’s citation to a 1994 law allowing for “Taiwan” to be listed on passports as a place of birth does not advance his case:  As compared to the designation “China,” the term “Taiwan” offers officials more information about the citizen’s place of birth–identifying it as having occurred on a particular island, regardless of which nation the U.S. considers to be the legitimate sovereign over that territory.

** Moreover, if Congress’s true objective had been to provide greater identifying information to officials reading the passport, it would not have enacted a statute that empowers U.S. citizens themselves to decide how to characterize their place of birth.


About the Author

is a professor at the Georgetown University Law Center. You can follow him on Twitter (@marty_lederman).