The Law Jerusalem Passport Case: Judicial Error and the Expansion of the President's Recognition Power

The dramatic growth in presidential power in foreign affairs and national security, spurred by 75 years of judicial decisions that find little support in the Constitution, took another leap when the District of Columbia Circuit Court of Appeals, in Zivotofsky v. Secretary of State (2013, 197, citing art. II, sec. 3), held for the first time in American history that the president's duty under the Reception Clause to receive ambassadors and ministers is, in reality, an exclusive discretionary power, broad enough to recognize foreign governments and nations and to determine and implement the policy governing the act of recognition. What had formerly stood as dicta was now law, and presidential exercise of the recognition power was beyond the authority of Congress to regulate or diminish. In a novel, separation of powers case with important ramifications for the conduct of American foreign policy, the circuit court addressed a conflict between the congressional power to regulate the form and content of passports and the presidential exercise of the recognition power. In a decision pregnant with potential to become a landmark ruling, the court held that congressional legislation in 2002 "impermissibly intrudes" on the president's exclusive power to recognize foreign governments and the ancillary authority to "determine the policy which is to govern the question of recognition" (Zivotofsky 2013, 213, quoting United States v. Pink 1942, 229). If Zivotofsky, on appeal to the U.S. Supreme Court, assumes landmark status, it will do so despite the relatively innocuous and obscure origins that contradict the importance of the issue and the controversy that surrounds it. The Passport Act of 2002 requires the Secretary of State to record Israel as the place of birth on the passport of a U.S. citizen born in Jerusalem, if requested by the parent or guardian of the applicants (116 Stat. 1350). The State Department, however, has refused to implement the statute since the executive branch does not, and never has, recognized Israel's claim to sovereignty over Jerusalem. Zivotofsky was cast by the District of Columbia Circuit as a case of "first instance"--the first in American history in which a court was asked to resolve a clash between the president and Congress over the issue of recognition. The drama in the case was heightened by the fact that it was litigated against the backdrop of one of the most contentious, unresolved questions of this, or any century--the status of Jerusalem. The battle between Congress and the president was joined when Congress enacted the Passport Act under its broad authority to determine passport policies on behalf of the United States. In a concurring opinion, Judge David Tatel stated, "It is beyond dispute that Congress's immigration, foreign commerce and naturalization powers authorize it to regulate passports" (Zivotofsky 2013, 221). But that power, according to the court, is not exclusive. Rather, it is a shared power; the president may regulate passports when national security interests are at stake. The clash between the president and Congress plunged the court into "relatively uncharted waters, with few fixed stars by which to navigate" (Zivotofsky 2013, 221, Tatel, J. concurring). As it happened, the circuit court selected a "star"--Justice Jackson's tripartite analysis in Youngstown Sheet & Tube Co. v. Sawyer (1952)--to navigate the issues. It concluded that the case fell into Justice Robert H. Jackson's third category of presidential power: "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter" (Zivotofsky 2013, 220, quoting Youngstown 1952, 637). Through passage of the Passport Act, the court reasoned, Congress had usurped the president's exclusive recognition power and thus it had impermissibly intruded upon the president's authority. …