576 U.S. 1 (2015)
In 1948, President Truman formally recognized the State of Israel but did not recognize Israeli sovereignty over Jerusalem.1 Over the subsequent decades, the Executive Branch maintained a consistent policy that the status of Jerusalem should be decided through negotiations rather than unilaterally.2 The State Department's Foreign Affairs Manual directed that passports for citizens born in Jerusalem list only "Jerusalem" as the place of birth.3
In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003, including section 214(d), which provided that for a United States citizen born in Jerusalem, the Secretary of State shall, upon request, record the place of birth as Israel on the passport.4 When signing the Act, President George W. Bush issued a statement asserting that the provision would impermissibly interfere with the President's constitutional authority if construed as mandatory.5
Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 to United States citizens.6 His mother requested that his passport list "Jerusalem, Israel" as the place of birth, but embassy officials followed State Department policy and listed only "Jerusalem."7 Zivotofsky's parents then brought suit on his behalf in the United States District Court for the District of Columbia to enforce section 214(d).8
The district court dismissed the case on political question and standing grounds.9 The Court of Appeals for the District of Columbia Circuit affirmed the political question determination after initially reversing on standing.10 The Supreme Court granted certiorari, vacated, and remanded for further proceedings.11 On remand, the Court of Appeals held the statute unconstitutional.12 The Supreme Court granted certiorari again.13
Whether the President has the exclusive power to grant formal recognition to a foreign sovereign?14
The Constitution vests the President with the exclusive power to recognize foreign sovereigns, derived from the Reception Clause in Article II, Section 3, reinforced by treaty and ambassadorial powers, and confirmed by longstanding precedent and historical practice requiring the Nation to speak with one voice on recognition.15
Yes. The facts establish that President Truman recognized Israel in 1948 without extending sovereignty over Jerusalem.16 Subsequent administrations maintained this policy of neutrality.17 The State Department's Foreign Affairs Manual directed that passports list only Jerusalem.18 This aligns with the exclusive executive authority recognized in Banco Nacional de Cuba v. Sabbatino and United States v. Pink.19
The President holds the exclusive power to grant formal recognition to a foreign sovereign.20
Related opinions on this issue
Justice Thomas wrote separately concurring in the judgment in part and dissenting in part.21 He grounded his analysis in the Article II Vesting Clause, which grants the President residual foreign affairs powers not enumerated elsewhere in the Constitution.22 Thomas concluded that passport regulation falls within those residual powers.23
He determined that section 214(d) lacks grounding in any of Congress's enumerated powers when applied to passports.24 Thomas would uphold the provision as applied to consular reports of birth abroad under the Naturalization Clause because those documents effectuate naturalization laws.25
Joined by Justice Alito
Chief Justice Roberts dissented on the ground that the statute does not implicate the recognition power at all.26 He explained that an optional birthplace notation in a passport is not a formal recognition act under international law.27 Roberts emphasized that the President's power reaches its lowest ebb when defying an express Act of Congress.28
He noted that no precedent supports allowing the Executive to disregard a statute in the field of foreign affairs.29 Roberts concluded that the majority's holding permits the President to defy Congress for the first time in this area.30
Joined by The Chief Justice And Justice Alito
Justice Scalia dissented on the ground that section 214(d) does not effect recognition.31 He explained that the statute merely accommodates private requests for a geographic description and imposes no international obligation on the United States.32 Scalia located ample congressional authority in the naturalization power and the Necessary and Proper Clause.33
He concluded that Congress may regulate the content of citizenship-authenticating documents such as passports and birth reports.34 Scalia argued that the majority's functional analysis erodes the separation of powers.35
Whether Congress can command the President and his Secretary of State to issue a formal statement that contradicts an earlier recognition?36
When the President exercises the exclusive recognition power, Congress may not enact a statute that requires the Executive to contradict that determination in official documents, because such a command would transfer the recognition power to the Legislative Branch and prevent the Nation from speaking with one voice.37
No. The facts show that section 214(d) mandates listing Israel on passports for Jerusalem-born citizens upon request.38 This directly contradicts the Executive's consistent policy of neutrality reflected in the Foreign Affairs Manual.39 The statute's title and legislative history confirm Congress's intent to alter the recognition stance regarding Jerusalem.40
Congress cannot command the President to issue a statement contradicting an earlier recognition determination.41
Related opinions on this issue
Justice Breyer filed a concurring opinion in which he expressed his continued belief that the case presents a political question inappropriate for judicial resolution.42 He referenced his dissenting opinion from the earlier decision in Zivotofsky v. Clinton, where he had argued against justiciability.43 Nevertheless, because precedent from the majority opinion in that prior remand precluded resolving this case on political question grounds, Breyer joined the Court's opinion on the merits.44
His concurrence thus reflects a pragmatic adherence to stare decisis on the threshold issue while accepting the majority's resolution of the separation of powers question presented.45