Supreme Court Sides with Executive Branch Over Jerusalem

Lots to say about this morning’s 6-3 decision in Zivotofsky v. Kerry, in which the Supreme Court struck down a provision of a 2002 Act of Congress that would have allowed U.S. citizens born in Jerusalem to have their place of birth recorded on their passports as “Israel,” in defiance of a now 63-year-old Executive Branch policy that takes no position on Jerusalem’s status (and instead recognizes Tel Aviv as Israel’s capital). In a nutshell, Justice Kennedy held that the statute violated the President’s exclusive power to grant formal recognition to a foreign sovereign, provoking sharp dissents from Justice Scalia (who argued that the provision didn’t even implicate the recognition power), and Chief Justice Roberts (who would have taken a more functionalist approach to the constitutional question). Justice Thomas concurred in part and dissented in part, suggesting that, although he agreed that the passport provision went too far, he thought the majority read the President’s recognition power too broadly–for example, he would not have struck down a similar proviso as applied to “Consular Reports of Birth Abroad,” as opposed to passports.

Needless to say, there’s a ton of stuff in here to digest–including, according to Chief Justice Roberts, the first time ever that the Supreme Court has “accepted the President’s direct defiance of an Act of Congress in the field of foreign affairs.” I suspect Marty and I, among others, will have additional thoughts later… 

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About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).