By DAVID B. RIVKIN JR. and LEE A. CASEY
Since the 1990s, Congress has maintained that Jerusalem should be recognized as Israel’s capital. Since Israel’s founding in 1948, presidents have stated that Jerusalem’s status can only be decided as part of a broader peace settlement. On Monday this dispute again reached the Supreme Court, and it offers the justices a unique opportunity to elucidate the proper way to resolve separation-of-power disputes between Congress and the executive.
Zivotofsky v. Kerry involves Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. His parents want Israel identified as his birthplace on his passport. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, permits this choice, but the secretary of state refused to comply, listing Jerusalem alone as his place of birth. The secretary argues that the law violates established U.S. foreign policy and interferes with the president’s exclusive power to recognize foreign states and their territorial extent.
In the first round of this litigation, the U.S. Court of Appeals for the District of Columbia concluded that this contest presented a political question that the courts could not answer. The Supreme Court reversed that decision, explaining that however “political” the circumstances, the question was a straightforward one of constitutional law suitable for judicial resolution.
The D.C. Circuit reheard the case last year and concluded that section 214(d) is unconstitutional because the president has the exclusive authority to determine the territorial boundaries of foreign states, their capitals and their governments—at least for purposes of U.S. diplomatic intercourse.
This authority is based in clear constitutional text that gives the president the power “to receive Ambassadors and other public Ministers.” Although the court found this language ambiguous (relying instead on historical practice and Supreme Court statements that the president alone has the power to recognize a foreign state as sovereign), the framers used this language precisely and to a purpose.
In their time, as today, the purpose of “receiving” an ambassador was not chitchat. It was a solemn act through which one head of state—usually through acceptance of “credentials” or “letters of credence”—recognizes the legitimacy of a foreign ambassador’s government—the right of his or her opposite number to send and accredit diplomatic representatives.
The critical nature of “receiving” is why, for example, the first American representatives sent to France in 1776 were not “received” by King Louis XVI until the colonies showed they had some chance of success in their war for independence from Britain by winning the battle of Saratoga in 1777. “Receiving” the Americans as diplomats inherently involved France’s recognition of the new country. By contrast, as noted by Emmerich de Vattel in his highly influential 18th-century treatise, “The Law of Nations,” refusing to receive diplomats does a state “a very great injury; it is contesting its sovereign dignity.”
That said, Congress is not powerless. Passports are both diplomatic communications and government documents, and Congress clearly has some constitutional authority to regulate their content—including its powers to regulate foreign commerce, control naturalization, and prescribe rules by which government agencies and departments operate.
Unlike many other separation-of-power cases, the Supreme Court is not presented here with a situation in which one of the political branches is acting outside its authority. Congress and the president are both exercising legitimate constitutional powers, but in a manner that produces conflicting results. As in other areas where competing constitutional imperatives conflict, the court should use a balancing test, which measures the extent of harm suffered by each political branch.
The president prevails when the harms in Zivotofsky are balanced. A law declaring Jerusalem a part of Israel on U.S. passports severely undercuts the president’s exclusive power to recognize other sovereign nations, manifesting that the U.S. position is muddled. By contrast, if Congress is denied this power, the harm it suffers is small, as Congress remains free to regulate many other passport details, such as size, shape, color, or requiring that passages from the Declaration of Independence or Constitution be included.
Some have suggested (including Justice Anthony Kennedy during oral argument) that the branches’ interests can be harmonized by having the president add passport language, disclaiming that the “Jerusalem, Israel” reference denotes formal U.S. recognition of Jerusalem as Israel’s capital. But such a disclaimer accomplishes nothing, giving neither Congress nor the president any solace. And the conveyance of a unified national position on Jerusalem’s status would remain in doubt, potentially undermining the president’s ability to negotiate Middle Eastern peace.
Zivotofsky presents an important opportunity for the Supreme Court to recognize that, when the two political branches clash over lawful but conflicting powers, balancing harms and harmonizing interests is the proper constitutional path.
Messrs. Rivkin and Casey, partners at the firm Baker Hostetler LLP, served in the White House Counsel’s Office and the Justice Department in the Reagan and George H.W. Bush administrations.