Notes on Zivotofsky

by Deborah Pearlstein

A fascinating ruling from the U.S. Supreme Court this morning in Zivotofsky v. Kerry, the case presenting the question whether Congress can mandate that U.S. citizens born (to American parents) in Jerusalem may have Israel listed on their passports as their place of birth. Since 1948, every U.S. president has carefully avoided opining in any context on the status of Jerusalem as falling within Israeli or any other nation’s sovereignty. The U.S. State Department has thus always issued passports listing “Jerusalem,” and not Israel as the place of birth for citizens born there. In 2002, Congress enacted a law mandating that citizens so desiring could have “Israel” listed as their place of birth. President Bush, then Obama, objected, arguing that such a law infringed on the President’s power to recognize foreign sovereign governments – a power both administrations maintained is held exclusively by the executive. The case marks the first time the Court has ever recognized a ‘preclusive’ power of the executive branch – that is, a power the President not only holds under the Constitution, but holds even if Congress enacts a law otherwise.

Two brief initial notes as I continue to digest. First, the majority’s opinion is workmanlike and narrow. The Court applies the well known framework for analyzing questions of executive power established in Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, relies on a host of earlier Court opinions, and concludes that the Reception Clause (the Article II provision giving the President the power to receive ambassadors) necessarily “encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including their territorial bounds.” The Court’s opinion – which transcends typical political divisions (Justice Thomas joins (in part) the majority of Justices Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan) – expressly disclaims any reliance on Article II’s Vesting Clause, the broad and undefined vesting in the President of “the executive power.” A holding based on that clause would have had potentially much more significant implications; the Vesting Clause has been regularly invoked by those advocating the most capacious understandings of executive power as a catch-all provision for affording the President sweeping powers in national security and foreign affairs. This decision offers no support for that theory.

Second, the majority’s opinion sensibly relies repeatedly on the nature and practice of recognition at international law as informing the framers’ understanding of the import of affording the President the power to receive ambassadors. As the Court puts it on one of several occasions: “[I]nternational scholars [citing Grotius and Vattel] suggested that receiving an ambassador was tantamount to recognizing the sovereignty of the sending state.” This is and should be seen as yet another unremarkable example of reliance by the Court on international law in understanding the scope of contemporary executive power under the U.S. Constitution. Not even Thomas in concurrence (much) protests. Whether the Supreme Court’s relative comfort with such analysis trickles down to the lower courts as questions of executive power arise in other contexts – the D.C. Circuit, among others, remains chronically allergic to international law in any form – will be among the more interesting consequences of this otherwise limited ruling to watch.

2 Responses

  1. The opinion is largely from the “liberals” (four) and a frequent “swing” voter, though there is Thomas, true. So it may not be as extraordinary a slate as some may think.

    Enjoyed your post.

  2. Response…The U.S. State Department has thus always issued passports listing “Jerusalem,” and not Israel as the place of birth for citizens born there.

    No, that’s not actually the case at all. In the decision of the United States District Court for the District of Columbia in Kletter v. Dulles (1950) the Court ruled that the US government had officially recognized the State of Palestine in 1932: “The contention of the plaintiff that Palestine, while under the League of Nations mandate, was not a foreign state within the meaning of the statute is wholly without merit. . . . Furthermore, it is not for the judiciary, but for the political branches of the Government to determine that Palestine at that time was a foreign state. This the Executive branch of the Government did in 1932 with respect to the operation of the most favored nations provision in treaties of commerce.”

    So, the US government continued to use “Jerusalem, Palestine” on its passports and refused to use Israel or Jordan, until the Government of Israel complained about it in the 1960s. That’s when it quit using Palestine.

    In the text of Der Judenstaat, the Basel Platform of the Zionist Congress, and the Balfour Declaration it was agreed that the Jewish national home would be established in “Palestine” (or “Argentina”).

    In a famous mandate era lawsuit over precise translations into the three official languages, that went all the way to the High Court of Justice on appeal, the Zionists swore under oath that the two letter abbreviation for “Eretz Yisrael” used on some stamps was merely the Hebrew cognate of the English term “Palestine” and a correct translation. See Jamal Effendi Husseini v. Government of Palestine (1 P.L.R. 5O), The case is discussed briefly on page 218 of 398 in the Yearbook Of The International Law Commission 1950 Volume II, The Court never reached the question, since it ruled that Article 22 of the Mandate was not enforceable anyway, because there was no enabling legislation and the issue wasn’t addressed in the 1922 Order-in-Council.

    It was only decades later that the government of Israel claimed that Palestine was all a legal and historical fiction. In 1995 the State Department published a Memorandum of Conversation between William Crawford Jr. and Mr. Shaul Bar-Haim from the Israeli Embassy (February 7, 1963) regarding Jerusalem. Bar-Haim said “The use of the term “Palestine” is historical fiction; it encourages the Palestine entity concept; its “revived usage enrages” individual Israelis”. Crawford replied “It is difficult to see how it “enrages” Israeli opinion. The practice is consistent with the fact that, ”in a de jure sense”, Jerusalem was part of Palestine and has not since become part of any other sovereignty.” — See Foreign Relations of the United States, 1961-1963, Vol. Xviii, Near East, United States. Dept. of State, G.P.O., 1995, ISBN 0160451590, page 341. –

    Nonetheless, the government of Israel persisted and refused to accept the official “English” passport entry “Jerusalem, Palestine” or the credentials of our US Consular staff. See the Foreign Relations of the United States (FRUS), 1964–1968, Volume XVIII, Arab-Israeli Dispute, 1964–67, Document 30, footnote 2. It reveals that:

    Telegram 774 to Tel Aviv, March 5, summarized an informal conversation between Davies and Israeli Minister Gazit concerning Israel’s efforts to obtain U.S. agreement to drop the use of “Jerusalem, Palestine” in passports issued or renewed in Jerusalem and issued to officers stationed in Jerusalem. Davies strongly protested Israel’s refusal to honor Consul Robert H. Munn’s passport, which contained this usage. (Ibid.) A chronology of discussions on this subject, dating back to February 1963, is attached to A–104 from Jerusalem, March 30. (Ibid.).
    The same document revealed that:

    2. We will cease using “Palestine” in passports as place of assignment and cease issuing, renewing, or amending passports with seal bearing word “Palestine”.

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