Zivotofsky v Kerry

Zivotofsky was born in Jerusalem and his parents asked that his birthplace be listed as Israel. The government refused based on long standing policy that no nation has sovereignty over Jerusalem. The parents sued under a statute allowing Israel to be listed as the birthplace of children born in Jerusalem. The DC Circuit ultimately held that the statute was unconstitutional as recognition of governments is solely vested in the executive branch. The Court, 6(5 justice majority and Thomas concurring in judgment in part)-3 affirmed. The majority held that recognition of foreign governments is exclusively an executive function under the receiving of ministers, appointment of ambassadors and similar provision of the Constitution, the practical reality that the President has power to conduct diplomacy not Congress and historical practice. It held the statute in question is unconstitutional as it requires the executive to act contrary to the President’s announced non recognition of Israeli sovereignty. The majority rejected the argument that all foreign affairs power is vested in the executive noting Congress retains the power of the purse, regulating foreign commerce and the power to reject treaties and ambassadors among others. Justice Breyer added a concurrence noting his belief the case represented a political question, but, as that view was rejected in an earlier appeal, joined the majority. Thomas concurred in judgment in part and dissented in part. He argued that recognition and passport control were part of the executive power as understood at the time of the founding and all executive power is vested n the President. He also argued that statutes cannot be “proper” under the constitution if they violate separation of powers, federalism or individual rights and here the statute violates separation of powers as to passports. He dissented on a provisional requiring Israel be listed on consular reports as those reports are part of Congress’ power over naturalization and have no consequences in the international arena. Roberts, joined by Alito, dissented arguing that the majority position is unprecedented in allowing the executive to defy an act of Congress given the constitutional text, views at the founding and historical practice all are equivocal at best and the receiving and apportioning provisions are duties not powers and the statute here does not im0liate recognition power at all. Scalia, joined by Roberts and Alito, dissented arguing the statute has nothing to do with recognition and everything to do with identification of citizens, that congress has power under the naturalization, foreign commerce and other clauses to make the law here and the executive is required to implement it.