The Supreme Court released only one opinion this Monday, but it’s a significant one. In Zivotofsky v. Kerry, the Court held 6-3 that the President does not need to follow a law requiring the State Department to label, on passports, that American children born in Jerusalem were born in Israel.

That seems like a minor issue, but it has significant implications, beyond even the conflict between Israel and Palestine over who controls the Holy City. With Zivotosfsky, the Court affirmed that the President has exclusive power to recognize foreign sovereigns, even over congressional objections.

Though the appropriations bill was signed, the Jerusalem passport law was never followed, as both Presidents Bush and Obama argued that it impermissibly infringed on executive authority. The Court agreed, applying Judge Jackson’s concurrence in Youngstown v. Sawyer. The opinion, written by Kennedy and joined by the Court’s liberal wing and Justice Thomas, is sure to have important separation of powers implications.

If you recall from Con Law, Jackson’s opinion in Youngstown established a “tripartite framework” for evaluating the constitutionality of presidential acts. Executive power is most likely to be constitutional when exercised with congressional authorization and least likely when taking measures “incompatible with the expressed or implied will of Congress.”

The First Ruling of Its Kind

Here, the Executive was acting directly to contrary to Congress, thus placing him in the weakest category. However, the Court emphasized the President’s “exclusive” and “conclusive” authority to receive and recognize ambassadors, and thus other nations, along with the other foreign affairs authority conferred to the executive branch. That was enough to support the President’s actions in even the most nebulous category of executive authority.

The case is significant for two reasons. In terms of immediate impact, it strengthens the position that the status of Jerusalem should be resolved between Israel and Palestine, as the Obama administration had argued was necessary. More broadly, however, it significantly strengthens the President’s ability to act in the face of congressional opposition. As Chief Justice Roberts wrote in his dissent, the decision is the first case to have “accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.”

Related Resources:

  • Walking on a Tightrope on Mideast Policy (SCOTUSblog)
  • Grants: Search, Career Criminal, and the Infamous Israel Passport (FindLaw’s U.S. Supreme Court Blog)
  • In 2 Separate Opinions, SCOTUS Talks Regulatory Authority (FindLaw’s U.S. Supreme Court Blog)
  • Perry and Windsor: Threads of Standing, Constitutional Quandaries (FindLaw’s U.S. Supreme Court Blog)

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