Supreme Court rules against parents of child born in Jerusalem over passport birthplace

Most Americans consider Jerusalem the capital of Israel. The US government officially takes no position on sovereignty, insisting that the final decision has to come from the Israelis and the Palestinians as part of the settlement from their decades-long standoff. In 2002, Congress passed a law that allowed those born in Jerusalem to list “Israel” as their country of birth on their passports despite Bush administration opposition to that point. Today, the Supreme Court struck down that statute 6-3 as an intrusion on executive-branch authority in foreign affairs:

The Supreme Court struck down a disputed law Monday that would have allowed Americans born in Jerusalem to list their birthplace as Israel on their U.S. passports in an important ruling that underscores the president’s authority in foreign affairs.

The court ruled 6-3 that Congress overstepped its bounds when it approved the law in 2002. It would have forced the State Department to alter its long-standing policy of not listing Israel as the birthplace for Jerusalem-born Americans. …

U.S. policy has long refrained from recognizing any nation’s sovereignty over Jerusalem and has held that the city’s status should be resolved through negotiations between the parties. Congress has for years tried to push administrations of both parties to recognize Jerusalem as Israel’s capital. The U.S. has never enforced the passport law, on the books since 2002.

The justices had Zivotofsky’s case before them once before. In 2012, the court rejected lower court decisions that called the matter a political issue that should be resolved by Congress and the president without the help of the courts.

The federal appeals court in Washington then struck down the law as an unconstitutional intrusion by Congress on the president’s authority over foreign affairs.

This ends one family’s efforts to get a passport for their son that reflects his Israeli birth:

Caught in the middle was a 12 year old boy, Menachem Zivotofsky . When he was born his parents sought to have “Israel” listed in his U.S. passport as his place of birth pursuant to a federal law. But the State Department refused. …

Zivotofsky’s lawyers framed the case differently. Alyza D. Lewin said the case is not about formal recognition, but simply how an American is identified on his or her passport.

“We do not claim this is recognition,” she said at oral arguments.

Having been in Jerusalem a few times, it’s difficult to dispute that it’s an Israeli city, whatever anyone else wishes. The Israelis control it, claim it as their capital, and house their government in the ancient city. Any potential settlement will result in at least most of the city remaining in Israeli sovereignty. Allowing passports to reflect reality doesn’t necessarily confer recognition as much as avoiding the nonsensical position that births in Jerusalem don’t occur under Israeli governance.

Congress has been pushing for official recognition of Jerusalem as the Israeli capital since at least 1995. Administrations of both parties have resisted that, in part to retain their ability to claim “honest broker” in settlement negotiations that end up going nowhere anyway. Republican presidential candidates promise to move the US embassy from Tel Aviv to Jerusalem, but George W. Bush didn’t do it, and it remains to be seen whether any other President would want to light that particular flame while the region remains on tenterhooks. It’s been easy for Congress to posture on this point, but it’s always been with some recognition that there could be a Constitutional problem with statutes that force diplomatic recognition in such a manner.

The court split on ideological lines, with Clarence Thomas the exception siding with the majority. The other conservatives argued that foreign policy was a shared arena between the executive and the legislative branches, a point with which Thomas agrees — to a point. On passports, though, Thomas argues that the law encroached on executive-branch powers:

Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, ignores that constitutional allocation of power insofar as it directs the President, contrary to his wishes, to list “Israel” as the place of birth of Jerusalem-born citizens on their passports. The President has long regulated passports under his residual foreign affairs power, and this portion of §214(d) does not fall within any of Congress’ enumerated powers.

By contrast, §214(d) poses no such problem insofar as it regulates consular reports of birth abroad. Unlike passports, these reports were developed to effectuate the naturalization laws, and they continue to serve the role of identifying persons who need not be naturalized to obtain U. S. citizenship. The regulation of these reports does not fall within the President’s foreign affairs powers, but within Congress’ enumerated powers under the Naturalization and Necessary and Proper Clauses.

Rather than adhere to the Constitution’s division of powers, the Court relies on a distortion of the President’s recognition power to hold both of these parts of §214(d) unconstitutional. Because I cannot join this faulty analysis, I concur only in the portion of the Court’s judgment holding §214(d) unconstitutional as applied to passports. I respectfully dissent from the remainder of the Court’s judgment.

Thomas relies on two decisions in which he dissented to make his point, probably providing him a little satisfaction with the sting:

Neither of the political branches is expressly authorized, for instance, to communicate with foreign ministers, to issue passports, or to repel sudden attacks. Yet the President has engaged in such conduct, with the support of Congress, since the earliest days of the Republic. Prakash & Ramsey, The Executive Power Over Foreign Affairs, 111 Yale L. J. 231, 298–346 (2001) (Prakash & Ramsey).

The President’s longstanding practice of exercising unenumerated foreign affairs powers reflects a constitutional directive that “the President ha[s] primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.” Hamdi v. Rumsfeld, 542 U. S. 507, 580 (2004) (THOMAS, J., dissenting). Specifically, the Vesting Clause of Article II provides that “[t]he executive Power shall be vested in a President of the United States.” Art. II, §1. This Clause is notably different from the Vesting Clause of Article I, which provides only that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, §1 (emphasis added). By omitting the words “herein granted” in Article II, the Constitution indicates that the “executive Power” vested in the President is not confined to those powers expressly identified in the document. Instead, it includes all powers originally understood as falling within the “executive Power” of the Federal Government.

Founding-era evidence reveals that the “executive Power” included the foreign affairs powers of a sovereign State. …

Neither has it quite right. The President is not constitutionally compelled to implement §214(d) as it applies to passports because passport regulation falls squarely within his residual foreign affairs power and Zivotofsky has identified no source of congressional power to require the President to list Israel as the place of birth for a citizen born in Jerusalem on that citizen’s passport. Section 214(d) can, however, be constitutionally applied to consular reports of birth abroad because those documents do not fall within the President’s foreign affairs authority but do fall within Congress’ enumerated powers over naturalization. …

The Constitution contains no Passport Clause, nor does it explicitly vest Congress with “plenary authority over passports.” Because our Government is one of enumerated powers, “Congress has no power to act unless the Constitution authorizes it to do so.” United States v. Comstock, 560 U. S. 126, 159 (2010) (THOMAS, J., dissenting). And “[t]he Constitution plainly sets forth the ‘few and defined’ powers that Congress may exercise.” Ibid. A “passport power” is not one of them.

Essentially, Thomas argues that his colleagues on the Right are correct that Congress has a role in foreign policy, but only in its implications here in the US, such as immigration and naturalization and so on. Passports have a primary use for travel abroad to nations in identifying American residents and their place of birth, and so this authority remains entirely with the executive branch. This coincides, more or less, with the objection to 214(d) that Bush provided in his signing statement for the overall law.

The net result of this will be to limit future Congressional action on Jerusalem — but also to shift the politics of the issue squarely on the White House. The smarter move for any administration would be to quietly allow the Zitofskys and other to list Israel as their country of birth under these circumstances while emphasizing that it has nothing to do with recognition. Why that common-sense and low-key solution got rejected in favor of coming to this point will be something of a mystery for most Americans.