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At first glance, yesterday’s Supreme Court decision in Zivotofsky v. Kerry — holding that Congress couldn’t force the executive branch to recognize Jerusalem as part of Israel on a passport — seems destined to end up as but a footnote in most constitutional law books. It only decides whether the president or Congress controls the content of U.S. passports. But because Zivotofsky involves the treatment of Jerusalem, it adds to the president’s foreign affairs arsenal and could affect the struggle over U.S. Middle East policy, such as an Iranian nuclear deal.
Zivotofsky upholds the executive’s right to control passports. According to the Court’s decision, the State Department, rather than Congress, decides whether to record the birthplace of a U.S. citizen born in Jerusalem as “Jerusalem,” rather than “Israel.” All of the justices agree that the president holds a monopoly on the recognition of foreign governments, which stems from his exclusive constitutional authority to “receive Ambassadors” and has existed since President Washington’s 1793 proclamation of neutrality during the French Revolution. Congress, on the other hand, has the authority to control immigration, the borders, and international travel. Justice Kennedy, who wrote the majority opinion on behalf of Justices Ginsburg, Breyer, Kagan, and Sotomayor, used an ill-conceived and undefined balancing test to conclude that Congress could not use these powers to contradict the president’s position on Israel’s territorial boundaries. A law using passports to contradict the president’s decision to recognize Israel “would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”
It is refreshing to see Democratic-appointed Justices, some of whom criticized President Bush’s right to manage the War on Terror, take a stand in favor of the executive’s authority in foreign affairs (though don’t hold your breath for their embrace of a President Walker’s use of executive power). Their majority opinion, however, skims over the most critical point by mistaking the power over passports as belonging to Congress, rather than the executive. But even if Congress enjoys this power, Justice Kennedy fails to explain why it undermines the executive’s recognition of Israel. His reason — that Congress cannot force the Secretary of State to contradict the president — makes little sense. Regardless of the passport’s listing of birthplace, U.S. recognition of Israel remains unchanged. President Obama can still maintain his frosty relations with Benjamin Netanyahu and even threaten to support Arab and European persecution of Israel at the United Nations, all the while claiming to be Israel’s best friend before domestic audiences. Although Congress’s passport law may reveal that the Republican legislature is far more supportive of Israel than the president, this will only come as news to those who missed Netanyahu’s March address before Congress.