In Jerusalem passport case, Supreme Court bolsters Obama’s foreign policy power

Menachem Zivotofsky with his father, Ari Zivotofsky, outside the Supreme Court in 2014.

Menachem Zivotofsky with his father, Ari Zivotofsky, outside the Supreme Court in 2014.

(Carolyn Kaster / Associated Press)

The Supreme Court on Monday bolstered the constitutional role of the president, and not Congress, in setting the nation’s foreign policy, declaring the executive office has the “exclusive power” to recognize foreign governments and negotiate sensitive disputes.

The ruling struck down a never-implemented 2002 law that attempted to give American parents the right to have “Israel” listed as the birthplace of a child born in Jerusalem.

By a 6-3 vote, the justices agreed with Presidents Obama and George W. Bush that this measure infringed on the power of the president and his secretary of State to resolve the long-running dispute over the status of the ancient city.


Both Israelis and Palestinians claim Jerusalem as their capital, and U.S. policy has long held that officially identifying the city as part of Israel would hinder negotiations between the parties.

The ruling is a defeat for the parents of Menachem Zivotofsky, who is now 12. They had sued under the law to have his passport list his birthplace as “Jerusalem, Israel.”

Beyond the narrow dispute at issue, the court’s opinion was a strong endorsement of presidential power at a time when Republicans are increasingly criticizing Obama for bypassing Congress and exceeding his authority, including on foreign matters such as the pending Iran nuclear deal.

The United States has not had formal diplomatic relations with Iran since 1980, but Obama hopes to complete a deal under which the Islamic Republic agrees to limit its nuclear program in exchange for U.S. and international sanctions being eased against Tehran.

In March, while the passport case was pending, Sen. Tom Cotton (R-Ark.) — joined by 46 Senate Republicans worried that the deal would be too soft on Iran — sent an open letter to Iran’s leaders. It emphasized the crucial role of Congress in approving international agreements and noted that Obama would be leaving office in two years.

“It has come to our attention,” the letter stated, “that you may not fully understand our constitutional system.”


Although Monday’s ruling will have no direct effect on the talks, Justice Anthony M. Kennedy’s opinion emphasized the president’s prime role in foreign policy.

“The president has the sole power to negotiate treaties, and the Senate may not conclude or ratify a treaty without presidential action,” he wrote. “Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation…. Put simply, the nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.”

To be sure, the president’s power is not “unbounded,” he said, and Congress need not fund or support the president’s initiatives. But when it comes to recognizing foreign governments, the nation must speak with one voice, Kennedy said. “That voice must be the president’s.”

In dissent, Chief Justice John G. Roberts Jr. called the decision the first of its kind. “Never before has this court accepted a president’s defiance of an act of Congress in the field of foreign affairs,” he said. He would have upheld the law, and Justice Samuel A. Alito Jr. agreed.

Justice Antonin Scalia read part of his separate dissent in court. “The tragedy of today’s decision is not its result,” he said, “but the principle that produces this result.” He said the Constitution divided power between the president and Congress, both in “foreign policy and … for just about everything else.” The court’s opinion “will systematically favor the president at the expense of Congress,” he said.

Kennedy’s opinion in Zivotofsky vs. Kerry spoke for Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justice Clarence Thomas concurred with the outcome, but did not join Kennedy’s opinion.

The Anti-Defamation League said it was disappointed with the ruling. “It is sad and unfortunate that Israel — as a sovereign state — is the only country in the world whose capital comes under such scrutiny,” Abraham Foxman, the ADL’s national director, said in a statement.

The Zivotofsky case took an unusually long time for the court to resolve. It posed several difficult questions, including whether the president could sign a measure into law and then refuse to abide by it.

When Bush signed the Foreign Relations Authorization Act in 2002, he issued a “signing statement” asserting that he would not follow the provision involving passports for U.S. citizens born in Jerusalem.

Upon taking office, Obama, along with the State Department, continued that policy. Three years ago, when the high court was first asked to hear the case, the court was divided and unable to issue a final ruling. The case was sent back to a U.S. appeals court in Washington, which affirmed its decision in favor of the State Department.

Because a law had been struck down as unconstitutional, the court voted to take up the case again. Arguments were heard in early November.

The Constitution does not directly address the question, but Kennedy said provisions allowing the president to “make treaties” and “appoint ambassadors,” combined with the nation’s early history, shows the “power to recognize foreign states resides in the president alone.”

Twitter: @DavidGSavage