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U.S. Supreme Court Upholds President’s Prerogative In Foreign Policy

The U.S. Supreme Court Rules on the Jerusalem Passport Case: Congress Does Not Have the Authority to Order the State Department to List Jerusalem, Israel, as the Passport Holder’s Place of Birth

Richard Horowitz 1

This Monday the U.S. Supreme Court decided on Zivitofsky v. Kerry, a case which determined that a U.S. citizen born in Jerusalem can only have the city listed on his U.S. passport as his place of birth, and not Jerusalem, Israel.

In 2002, Menachem Zivitofsky was born in Jerusalem; his American mother requested of the U.S. Embassy in Tel Aviv to list his place of birth as Jerusalem, Israel, in accordance with Section 214(d) of the Foreign Relations Authorization Act of 2003 which states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

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The Embassy refused, arguing that U.S policy does recognize Jerusalem as being under the sovereignty of any country and the Zivitofsky family sued to enforce this Congressional legislation.  The question before the Supreme Court therefore was who has the authority to decide the designation of a place of birth on a U.S. passport, Congress or the President?

By a 6-3 decision, the Supreme Court declared this Section 214(d) unconstitutional, stating that “the Court has long considered recognition to be the exclusive prerogative of the Executive” and that “Because the power to recognize foreign states resides in the President alone, Section 214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem.”

The implication of this Supreme Court ruling is that passports of American citizens born in Jerusalem must continue to show Jerusalem, and not Jerusalem, Israel, as the passport holder’s place of birth.

The Court cited President George W. Bush statement when he signed the 2003 act into law, that Section 214 “if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”

In their dissenting opinion, Chief Justice Roberts and Justice Alito wrote “Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”

Numerous amici curiae (“friend of the court”) briefs in favor of Zivitofsky were filed, including from several prominent Jewish organizations, among them the American Jewish Committee, the Anti-Defamation League, and the International Association of Jewish Lawyers and Jurists. Among the organizations that signed the ADL’s brief were the American Israel Public Affairs Committee, B’nai B’rith International, Central Conference of American Rabbis, Hadassah, the Jewish Council for Public Affairs, the National Council of Jewish Women, the National Council of Young Israel, the Rabbinical Assembly, the Union for Reform Judaism, the Union of Orthodox Jewish Congregations of America, Women of Reform Judaism, and the Women’s League for Conservative Judaism.

Abraham H. Foxman, ADL National Director issued a statement saying that “It is sad and unfortunate that Israel – as a sovereign nation – is the only country in the world whose capital comes under such scrutiny and has to defend its right to determine where its capital city exists.”

The American Jewish Committee’s General Counsel stated that “The Supreme Court ruling is a personal tragedy for the Zivitofsky family, and a greater one for all U.S. citizens who legitimately claim Jerusalem, the capital city of Israel, as their place of birth.”

While the Supreme Court wrote that “It remains true, of course, that many decisions affecting foreign relations . . . require congressional action, ”the Court nevertheless held that the President has exclusive authority to recognize foreign nations. And, since this presidential decision is fundamentally based on domestic and international politics, it remains to be seen whether the decision to issue Jerusalem and not Israel as the place of birth on a U.S. passport, and, to recognize Jerusalem as Israel’s capital, will one day change.


Richard Horowitz

Richard Horowitz is an attorney located in Israel. His practice focuses on commercial and international law.  Horowitz has lectured on money laundering, terrorism, and corporate espionage in 18 countries.




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