Zivotofsky v. Kerry

Petitioner Zivotofsky was born to United States citizens living in Jerusalem. Pursuant to § 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, his mother asked American Embassy offcials to list his place of birth as “Israel” on, inter alia, his passport. Section 214(d) states for “purposes of the registration of birth, certifcation 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.” The Embassy offcials refused to list Zivotofsky's place of birth as “Israel” on his passport, citing the Executive Branch's longstanding position that the United States does not recognize any country as having sovereignty over Jerusalem. Zivotofsky's parents brought suit on his behalf in federal court, seeking to enforce § 214(d). Ultimately, the D. C. Circuit held the statute unconstitutional, concluding that it contradicts the Executive Branch's exclusive power to recognize foreign sovereigns.

Held:

1. The President has the exclusive power to grant formal recognition to a foreign sovereign. Pp. 10–28.

(a) Where, as here, the President's action is “incompatible with the expressed or implied will of Congress,” the President “can rely [for his authority] only upon his own constitutional powers minus any constitutional powers of Congress over the matter,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (Jackson, J., concurring). His asserted power must be both “exclusive” and “conclusive” on the issue, id., at 637–638, and he may rely solely on powers the Constitution grants to him alone, id., at 638. To determine whether the President's power of recognition is exclusive, this Court examines the Constitution's text and structure and relevant precedent and history. P. 10.

(b) The Constitution's text and structure grant the President the power to recognize foreign nations and governments. The Reception Clause directs that the President “shall receive Ambassadors and other public Ministers,” Art. II, §3. And at the time of the founding, receiving an ambassador was considered tantamount to recognizing the sending state's sovereignty. It is thus logical and proper to infer that the Reception Clause would be understood to acknowledge the President's power to recognize other nations. This inference is further supported by the President's additional Article II powers: to negotiate treaties and to nominate the Nation's ambassadors and dispatch other diplomatic agents. Though ratifying a treaty and confrming an ambassador require congressional approval, Congress lacks authority to initiate the actions without the President's involvement. The President, unlike Congress, also has the power to open diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers. The Constitution thus assigns the President, not Congress, means to effect recognition on his own initiative.

Functional considerations also suggest that the President's recognition power is exclusive. The Nation must “speak . . . with one voice” regarding which governments are legitimate in the eyes of the United States and which are not, American Ins. Assn. v. Garamendi, 539 U. S. 396, 424, and only the Executive has the characteristic of unity at all times. Unlike Congress, the President is also capable of engaging in the delicate and often secret diplomatic contacts that may lead to a recognition decision, see, e. g., United States v. Pink, 315 U. S. 203, 229, and is better positioned to take the decisive, unequivocal action necessary to recognize other states at international law. The President has also exercised unilateral recognition power since the founding, a practice endorsed by this Court, see, e. g., Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 410.

Under basic separation-of-powers principles, Congress, which has the central role in making laws, see Art. I, § 8, cl. 18, does have substantial authority regarding many policy determinations that precede and follow an act of recognition. The President's recognition determination is thus only one part of a political process. Pp. 11–17.

(c) A fair reading of relevant precedent illustrates that this Court has long considered recognition to be the exclusive prerogative of the Executive. See, e. g., Williams v. Suffolk Ins. Co., 13 Pet. 415, 420; United States v. Belmont, 301 U. S. 324, 330; United States v. Pink, supra, at 229; Banco Nacional de Cuba v. Sabbatino, supra, at 410; National City Bank of N. Y. v. Republic of China, 348 U. S. 356, 358. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320, does not support a broader defnition of the Executive's power over foreign relations that would permit the President alone to determine the whole content of the Nation's foreign policy. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. See, e. g., Medellín v. Texas, 552 U. S. 491, 523–532. Nonetheless, it is for the President alone to make the specifc decision of what foreign power he will recognize as legitimate, and his position must be clear. Pp. 17–23.

(d) The weight of historical evidence also indicates Congress has accepted that the recognition power is exclusive to the Presidency. Cf. NLRB v. Noel Canning, 573 U. S. 513. Since the frst administration, the President has claimed unilateral authority to recognize foreign sovereigns. And Congress, for the most part, has acquiesced, generally respecting the Executive's policies and positions on formal recognition and even defending the President's constitutional prerogative. Pp. 23–28.

2. Because the power to recognize foreign states resides in the President alone, § 214(d) infringes on the Executive's consistent decision to withhold recognition with respect to Jerusalem. See Nixon v. Administrator of General Services, 433 U. S. 425, 443. The provision forces the President, through the Secretary of State, to identify, upon request, citizens born in Jerusalem as being born in Israel when, as a matter of United States policy, neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem.

If the recognition power is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also may maintain that determination in his and his agent's statements. Under international law, recognition may be effected by written or oral declaration. In addition, an act of recognition must leave no doubt as to the intention to grant it. Thus, if Congress could alter the President's statements on matters of recognition or force him to contradict them, Congress in effect would exercise the recognition power. An “exclusive” Presidential power “disabl[es] the Congress from acting upon the subject.” Youngstown, supra, at 637–638 (Jackson, J., concurring). If Congress may not pass a law, speaking in its own voice, effecting formal recognition, then it may not force the President, through § 214(d), to contradict his prior recognition determination in an offcial document issued by the Secretary of State. See Urtetiqui v. D'Arcy, 9 Pet. 692, 698.

Section 214(d)'s faw is further underscored by the fact that the statute's purpose was to infringe on the President's exclusive recognition power. While Congress may have power to enact passport legislation of wide scope, it may not “aggrandiz[e] its power at the expense of another branch” by requiring the President to contradict an earlier recognition determination in an offcial Executive Branch document. Freytag v. Commissioner, 501 U. S. 868, 878. Pp. 28–32.

725 F. 3d 197, affrmed.