D.C. Circuit's Remand Opinion in Zivotofsky

Samantha Goldstein
Thursday, July 25, 2013, 4:00 PM
As Jack and Raffaela noted yesterday, the D.C.

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As Jack and Raffaela noted yesterday, the D.C. Circuit held in the so-called “Jerusalem passport case” that §214(d) of the 2003 Foreign Relations Authorization Act unconstitutionally intrudes upon the President’s exclusive power to recognize foreign nations.
Comprehensive discussion of the case’s factual underpinnings can be found in Curtis Bradley’s post from 2011, but the facts, briefly, are as follows. The United States had long taken no position in the debate regarding whether or not Jerusalem is rightly part of Israel. In 2002, however, Congress passed the Foreign Relations Authorization Act, which challenged the Executive Branch’s established approach. In part, the Act provides that if a U.S. citizen born in Jerusalem requests his place of birth be listed in his passport as “Israel,” then the “Secretary [of State] shall … record the place of birth as Israel.” §214(d). President Bush, in 2002, signed the Act into law, but attached a signing statement making clear that he believed §214 was an unconstitutional incursion on Executive authority.
Menachem Binyamin Zivotofsky, the son of two American citizens (and therefore an American citizen himself), was born in Jerusalem in October 2002, soon after Congress passed §214. Zivotofsky’s parents requested that his place of birth be listed on his passport as “Jerusalem, Israel.” U.S. officials refused, citing longstanding State Department policy. Zivotofsky’s parents then filed suit on his behalf against the Secretary of State.
In 2004, the District Court for the District of Columbia dismissed the complaint, holding that Zivotofsky lacked Article III standing and that the case presented a non-justiciable political question. In 2006, the D.C. Circuit reversed, finding that the child had suffered injury in fact and thus had standing to sue. The D.C. Circuit then remanded the case to the District Court. After further findings, the District Court in 2007 reiterated its view that Zivotofsky’s request presented a non-justiciable political question. In 2009, the D.C. Circuit affirmed, likewise finding the case non-justiciable. The D.C. Circuit in 2010 denied Zivotofsky’s petition for rehearing en banc. The Supreme Court granted certiorari in 2011, and last year held that Zivotofsky’s action was not barred under the political question doctrine. Chief Justice Roberts, writing for the majority, explained that the case required a court to determine only if Zivotofsky was able to vindicate the statutory right granted to him by Congress in §214(d). The Court then remanded the case for consideration by the lower court of its merits in the first instance.
Yesterday, the D.C. Circuit held that §214 is an unconstitutional incursion upon the President’s exclusive recognition authority.
The court first determined that the Executive’s recognition power is, in fact, exclusive. Although “[n]either the text of the Constitution nor originalist evidence provides much help,” longstanding practice and Supreme Court precedent nevertheless make clear that the President’s recognition power is exclusive. The court noted that the power has been treated as such by the Executive throughout our nation’s history. For example, the court said, “President Washington’s cabinet unanimously concluded that Washington need not consult with the Congress before receiving the minister from France’s post-revolutionary government, notwithstanding his receiving the minister recognized the new government by implication.” The court rejected Zivotofsky’s proffered counter-examples, explaining that they merely showed that the President sometimes enlisted the support of Congress on recognition-related issues as a matter of political prudence.
Moreover, although the Supreme Court has never held that the President has exclusive recognition power, the Court has more than once declared as much (referencing cases such as Williams v. Suffolk Ins. Co.United States v. BelmontUnited States v. PinkBanco Nacional de Cuba v. Sabbatino, and Baker v. Carr). For an inferior court like the D.C. Circuit, “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative, … especially if the Supreme Court has repeated the dictum.” [Jack questioned this part of the court’s analysis yesterday.]
The court then concluded that, with §214(d), Congress had used its non-exclusive passport authority to infringe on this exclusive Executive power.The Executive, the court explained, has consistently interpreted Congress’s numerous passport acts as preserving his authority to withhold passports on national security and foreign policy grounds. Moreover, the President’s recognition power “is not limited to a determination of the government to be recognized”; its scope “includes the power to determine the policy which is to govern the question of recognition.” The court explained that Congress explicitly infringed upon the recognition power, referencing, for example, the title of §214: “United States Policy with Respect to Jerusalem as the Capital of Israel.” Specifically, the court said, “the unconstitutional intrusion results from section 214(d)’s attempted alteration of United States policy to require the State Department to take an official and intentional action to include ‘Israel’ on the passport of a United States citizen born in Jerusalem. … Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality on what nation or government, if any, is sovereign over Jerusalem.” In sum, then, §214(d) directly intrudes upon an exclusive Executive prerogative, and §214(d) is thus unconstitutional.
Judge Tatel concurred fully in the court’s opinion, but wrote separately to comment further upon Congress’s passport power and the resultant separation of powers dispute between Congress and the President. Although Congress clearly has the power to regulate passports, he said, the President’s recognition power is exclusive. Thus, if the President’s policy here was an exercise of his recognition authority, then Congress’s intrusion is impermissible. Judge Tatel acknowledged that the Executive’s policy in this case involves questions of identification and personal identity, but felt that it also clearly implicates recognition. He concluded that because §214(d) sought to abrogate the Secretary’s longstanding practice as a policy matter (citing, like the court, the title of the statute), it was therefore an unconstitutional intrusion on the President’s exclusive power.

Samantha Goldstein is a recent graduate of Harvard Law School.

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