Zivotofsky Ex Rel. Ari Z. v. Secretary of State

Binyamin ZIVOTOFSKY, by Menachem Z. and and Guardians Ari Parents ZIVOTOFSKY, Ap- Siegman

Naomi

pellant STATE, Appellee. OF

SECRETARY

No. 07-5347. Appeals,

United States Court of

District Columbia Circuit. March

Argued July

Decided argued

Nathan Lewin cause for appellant. Alyza D. Lewin brief.- was on Robert G. Kidwell was on amici brief for League curiae Anti-Defamation al. in et support appellant. of the David I. on Schoen was brief for amicus Organization curiae Zionist of America support appellant. of the Kujawsky Paul was on brief for amicus curiae American Association of Jewish Lawyers and Jurists in support of appellant. Ostfeld,

Gregory E. Elliot H. Scherker and Marc were on Stern brief for amicus sup- curiae American Jewish Committee port of the appellant. B. Olson was on ami-

Theodore brief for ci curiae Members United States Senate appellant. et al. in support Kaersvang, Attorney, Dana United Justice, Department argued States appellee. Delery, cause for the F. Stuart Attorney General, Acting Assistant Ronald Machen, Jr., Attorney, C. United States Adviser, Koh, Hongju Legal and Harold State, Department were United States Douglas on brief. Lewis Yelin and N. Letter, Attorneys, Depart- Justice, Lawrence, Craig ment of and R. Attorney, Assistant entered appearances. HENDERSON,

Before: ROGERS TATEL, Judges. Circuit consistently Truman have declined from by filed Circuit for the Court Opinion country’s— recognize Israel’s—or HENDERSON. Judge Israel sovereignty Jerusalem. When over filed Circuit Concurring opinion that it to con- announced in 1948 intended Judge TATEL. meeting Parlia- inaugural of its vene HENDERSON, KAREN LECRAFT it con- in a part ment of Jerusalem Judge: Circuit trolled, to send the United States declined ceremonies; to attend the representative Relations Foreign Section Department explained cable a State Act, Fiscal Year Authorization any ar- support cannot “the United States 107-228, 116 Stat. Pub.L. No. author- purport to rangement which would Secretary (Secretary) of quires (State ... the of Israeli sover- ize establishment of State Department States United the the area.” eignty parts as over of Jerusalem to record “Israel” Department) Slonim, America’s passport of United Jerusalem in place of birth on the Shlomo (1998). if the in born Jerusalem at 123 Foreign Policy, States citizen so guardian requests. or in proceedings citizen his During United Nations 214(d), Secretary The at 1366. 116 Stat. the United States ambassador stated believing provision, has not enforced “continuing policy of the United on the Pres- impermissibly that it intrudes “the Government” was that status States authority under the Unit- ident’s exclusive should be decided of Jerusalem whether ed States Constitution decide all unilaterally in consultation with but to recognize and on what terms GAOR, Emergency 5th concerned.” U.N. and therefore hold agree nations. We ¶¶ Sess., mtg. píen. 1554th U.N. 214(d) unconstitutional. section 1967) (July (quotation Doc. A/PV.1554 omitted). Secretary marks As the summa- Background I. pro- in response interrogatories rized city of Jerusalem The status of in this posed case: in re- issues one of most contentious of highly the framework sen- Within more two mil- history. corded For than sitive, volatile, mix of potentially lennia, by a won and lost city has been juridical, and consid- political, religious controversy The con- sovereigns. host of erations, Presidents have consis- of and the today tinues the state Israel as tently to maintain a strict endeavored sovereignty Palestinian both claim people of the Jerusalem policy prejudging against It this back- city. over in engaging thus not status issue and in arises. dispute this case ground or recognize, official actions that would of the twentieth centu- Since middle rec- might perceived constituting be as have taken a ry, United Presidents of, ognition capi- as Jerusalem either neutrality on the issue of position strict Israel, city city tal or located Af- sovereign controls Jerusalem. sovereign territory within the of Israel. in independence ter Israel declared Resps. Interrogs. Def.’s Pl.’s at Zivo- Harry prompt- S. Truman State, tofsky Sec’y ex rel. recognized sovereign. ly it as 2006) (D.D.C. Reinstein, No. 03-cv-1921 June A Recognition: Robert J. 59). Therefore, (Joint (JA) Appendix Study Original Case on the Understand- States, Power, nearly like all other “[t]he Executive U. Rich. L.Rev. countries, (2011). embassy Nevertheless, its [Israeli] Presidents maintains 58) (JA Aviv,” “Jerusalem, (quotation in “Jerusalem”—not or Tel id. Israel” omitted), not Jerusalem. “Israel”—as the of birth on the pass- marks port for an in applicant born Jerusalem Foreign Affairs Department’s State after 1948. (FAM) passport adminis- Manual contains policy neu- Recently, rules that reflect the attempted

tration trality. The FAM first directs detail alter Executive branch’s consistent applicant’s birthplace neutrality. is to be how it enacted rule, passport. general Act, on his “As Embassy stated the Jerusalem which pro- country applicant’s enter the of the birth recog- vides “Jerusalem should be birth [place pass- field Israel”; the] nized capital State (JA HI).1 If, port.” FAM 1383.1 Embassy “the United States in Israel however, the born “in applicant was terri- should be established Jerusalem no la- tory disputed by country, city another 31, 1999”; May ter than more “[n]ot may or of birth be written” in lieu of area 50 percent than appropriated funds (JA 113). country. 7 FAM 1383.5-2 Department year State fiscal Similarly, an applicant may request 1999 for ‘Acquisition and Maintenance of town, “city list rather Buildings may obligated Abroad’ until than 7 FAM country, birth.” [his] Secretary of State determines 1383.6(a) (JA 115). Jerusalem, Regarding ports Congress that the United States policy: the FAM sets forth detailed Embassy officially Jerusalem applicants May born For before 104M5, 3(a)-(b), opened.” § No. Pub.L. place municipal in a that was within the (1995) (enacted 109 Stat. into law Jerusalem, borders of enter JERUSA- without signature). During President’s place per- LEM as their of birth. For Congress’s the consideration of the legisla- May sons born before in a tion, the Executive branch communicated location that was outside Jerusalem’s Congress regarding with the its constitu- municipal limits and later was annexed Cong. (dai- tionality. S15,463 Rec. by city, the enter either PALESTINE 1995). ly ed. Oct. The United States or the name the location (area/city) (DOJ) Department of via an Justice assis- known to annexation. prior was For attorney general tant wrote the White persons May bom after in a “It is House Counsel: well settled that the location that was outside Jerusalem’s Constitution the with the vests President municipal limits and later was annexed authority to the exclusive conduct Nation’s city, by acceptable the it is to enter the States,” with other diplomatic relations (area/city) name of the location as it was that “the prior known to annexation.... proposed and that bill “[t]he exclusive” (JA 115). severely impair FAM 1383.5-6 The FAM would the President’s con- spe- that, cifically provides an applicant stitutional the form determine diplomatic born in Jerusalem: “Do not write manner re- Israel of the Nation’s and, further, 15,468. passport Jordan” on his Id. at lations.” S The DOJ official ” explained “[d]oes Israel not include that his “not Jerusalem.... conclusions were (JA 127). novel”; pt. Reagan 7 FAM 1383 1383.1 II for example, Ex. Admin- “[t]he sum, Department objected in the State must record istration 1984 to bill to corn- provisions FAMAll cited herein refer relevant events. version, during the which was in effect President September On of the

pel the relocation signed law For- George W. Bush into Jerusalem, on Tel Aviv Embassy from Act, Fiscal eign Relations Authorization close- was so grounds that the decision 2003, Pub.L. No. 116 Stat. Year exclusive the President’s ly connected with provision Section responsibility to power [and] constitutional provides: and it issue relations recognize, ongoing to conduct (d) OF BIRTH OF PLACE RECORD to, in with, our foreign governments ISRAEL FOR PASSPORT PUR- AS view, legis- proper scope beyond purposes registra- POSES.—For S15,469 (quotation Id. at lative action.” birth, nationality, tion of certification omitted). Similarly, then-Sec- marks of a of a United or issuance legisla- retary opposition expressed city of citizen born in the Jerusa- Majority a letter to the Senate lem, shall, upon Secretary Secretary explained Id. Leader. legal citizen or the citizen’s quest to the Arab- no issue related “[t]here is record birth as guardian, that is more sensitive negotiations Israeli Israel. “any effort Con- than Jerusalem” 214(d), 116 Stat. at 1366.2 When Id. is ill- bring it to the forefront gress to Act, however, also signed he very damaging potentially advised and statement, noting signing issued Id. He peace process.” the success provisions Act a number of “the contains regarding echoed the DOJ official’s doubts with con- impermissibly interfere Ultimately, constitutionality. the bill’s presidency functions stitutional legislation enacted affairs,” including section 214: authorizing the President provision waiver Jerusalem, im- concerning Section for six- suspend funding restriction permissibly with the Presi- interferes the se- “protect month national periods authority con- constitutional dent’s curity of the United States.” interests Nation’s affairs and duct the the executive branch. supervise unitary § 109 Stat. at 400. Pub.L. No. 104-45 (c) provides LIMITATION ON USE OF FUNDS FOR 2. in full: Section the au- PUBLICATIONS.—None of funds POLICY SEC. 214. UNITED STATES may appropriated by AS THE thorized to be this Act RESPECT TO JERUSALEM WITH OF ISRAEL. publication CAPITAL be for the of offi- available (a) OF STATEMENT CONGRESSIONAL cial which lists document com- maintains its POLICY.—The capital and their cities unless the countries relocating States the United mitment capi- publication Jerusalem the identifies urges Embassy and in Israel to Jerusalem tal of Israel. President, pursuant the to the Jerusalem (d) OF OF BIRTH AS RECORD PLACE 104-45; (Public Embassy of Law Act FOR PASSPORT PURPOSES.— ISRAEL 398), begin immediately the 109 Stat. birth, purposes registration of of For process relocating Em- of the United States nationality, certification of or issuance of bassy to Jerusalem. in Israel passport a United States citizen born in of (b) ON USE OF FUNDS LIMITATION shall, Jerusalem, Secretary city of FOR CONSULATE IN JERUSALEM.— request upon of the citizen or the citi- approp- of the funds authorized to be None place legal guardian, of zen’s record expended may for riated Act birth Israel. operation or of a States consulate United § 1365- 116 Stat. at Pub.L. No. diplomatic facility such in Jerusalem unless diplomatic facility under consulate supervision of United States Ambassa- dor to Israel. Moreover, declaratory permanent direction in relief purported injunc- and a would, as man- section 214 if construed ordering Secretary tion to issue him a impermis- datory advisory, rather than “Jerusalem, passport listing Israel” as his con- sibly interfere with (JA 10).3 of place birth. Id. at to formulate stitutional litigation been up appel- and down the States, of position speak the United for First, September late ladder. on affairs, the Nation in international case, the district court dismissed the con- recogni- the terms on which determine cluding that Zivotofsky lacked Article III given states. U.S. and, standing alternatively, that the case policy regarding Jerusalem has not presented nonjusticiable political ques- changed. tion. Zivotofsky ex v. Zivotofsky Sec’y rel. Signing Foreign Statement Rela- State, 03-cv-1921, No. WL of Act, tions Authorization Fiscal Year (D.D.C. 7, 2004). Sept. subsequently We 2002). (Sept. WL 31161653 remanded, reversed and holding that Zivo- Zivotofsky (Zivotofsky) tofsky Menachem is a had standing.4 Zivotofsky ex rel. State, citizen Jeru- born Zivotofsky Sec’y 444 F.3d 614 salem to are parents (D.C.Cir.2006). who United States Zivotofsky We noted that ¶¶ 2-5, Compl. Zivotofsky citizens. ex rel. injunctive had amended relief he ini- State, Sec’y No. 03-cv- tially sought, requesting Secretary (D.D.C. 2003) (JA 8-9); Sept. “Jerusalem, record “Israel” instead Is- 1401(c) also 8 “nation- (making U.S.C. rael” as passport. his of birth on his al[ ] citizen[ ] United States 616 n. “[t]he Because case no person birth ... born outside longer the claim involve[d] the district outlying possessions United States and its considered,” court we “remand[ed] parents of whom are both citizens case to the district court so that both sides United States and one whom has had a may complete develop more record relat- in the residence United States or one subjects dispute.” these other birth outlying possessions, prior to the Id. at 619-20. person”). Zivotofsky’s such moth- applied er for a September On district Zivotofsky, listing birthplace as “Jeru- again case, court dismissed the once more ¶ (JA 9). salem, Israel.” Id. 8 The State deciding nonjusticiable polit a presented however, Department, following its Jerusa- question. Zivotofsky ical ex rel. Zivotof 1383.5-6, set 7 lem forth in FAM State, sky 511 Sec’y F.Supp.2d v. 97 Zivotofsky’s issued a in passport name list- II.) (D.D.C.2007) affirmed, (Zivotofsky We place “Jerusalem” his birth. Id. “[bjecause judiciary that concluding authority has no to order the Executive Zivotofsky, September “by On change Branch poli the nation’s his and Ari parents guardians, Z. and Nao- matter, cy in Siegman Zivotofsky,” nonjusticiable mi this this case brought suit alia, against Secretary, seeking, political question inter under the doctrine.” Zi alleged Zivotofsky's complaint report 3. State consular of birth abroad from the Department improperly also recorded his passport. Arg. Oral Tr. 23-24. report of birth on his consular of birth argument, abroad At as ''Jerusalem.” oral political question We did not reach the is- however, Zivotofsky's made clear that counsel sue. legal argument distinguishing he raised no 204 State, 571 tutional defense because section Sec’y F.3d

votofsky v. IV).5 (D.C.Cir.2009) CZivotofsky permissible passport legisla- constitutes Zivotofsky’s solution— proposed tion. But Court va- Supreme The United States we that the President’s hold effect remanded, holding that the case cated recognition power is not so constitutional question. political not Zi- present does 214(d)—is encompass as to — broad section Clinton, Zivotofsky v. votofsky rel. ex holding. constitutional We would U.S.-, 1421, 182 L.Ed.2d 423 S.Ct. upon a constitutional “passing] avoid V.) explained The Court (Zivotofsky resolving question” by the case being are not federal courts “[t]he manner; give instead we would the Presi- foreign policy decision supplant asked constitutional the narrow dent’s [i]nstead, Zi- political of the branches.... Zivotofsky presses. construction More- votofsky that the courts enforce a requests over, Supreme specifically Court right.” Id. at 1427. statutory specific textual, us examine instructed “the parties dispute do Given that structural, and historical evidence ... 214(d), is, section substance of garding passport the nature requirement that “Israel” be recorded on V, recognition powers.” Zivotofsky birthplace passport applicant’s as the S.Ct. question at his “the real for request, only

the courts is whether the statute is consti- Second, in Youngstown Sheet & tutional,” requires “deciding which wheth- Sawyer, Company Tube impermissibly upon er the statute intrudes (1952), S.Ct. 96 L.Ed. 1153 Justice powers Presidential under the Constitu- a tripartite Jackson set forth framework at 1427-28. The Court further tion.” Id. evaluating powers for explained Zivotofsky’s that “[r]esolution depending congressional act on the level of claim demands careful examination acquiescence. textual, structural, S.Ct. 863 and historical evidence (Jackson, J., concurring); see also Medel put by parties regarding forward Texas, lin nature of the statute and (2008) (“Justice Id. at 1430. L.Ed.2d 190 recognition powers.” tripartite familiar pro Jackson’s scheme II. The Merits accepted vides the framework for evaluat area.”). First, merits, ing executive action addressing Before we ad First, pursuant the President acts to an “[w]hen dress matters. Zi preliminary two “ express implied votofsky must ‘not authorization Con argues pass that we maximum, although gress, at its upon question constitutional record, possesses if all that he in his properly presented there it includes own present ground right plus delegate.” also other all that upon some can ” may disposed Youngstown, case of.’ Unit U.S. at S.Ct. 863. Brinson-Scott, 616, Second, ed States v. 714 F.3d the President acts in “[w]hen ab (D.C.Cir.2013) (quoting grant 621 a congressional Ashwander sence either or Auth., 288, 347, rely Valley authority, only upon 297 U.S. 56 denial of he can Tenn. (1936) (Brandéis, 466, powers, 80 L.Ed. his own but there is a S.Ct. 688 inqependent J., Zivotofsky Congress concurring)). twilight maintains that zone in which he and authority, Secretary’s may we should not reach the consti- have concurrent or which IV, concurred, Judge noting 5. Senior merits. 571 F.3d at Edwards J., (Edwards, rejected Zivotofsky's concurring). that he would have claim

205 637, court, is Id. at its distribution uncertain.” see id. at 84 S.Ct. 923; Third, Guaranty States, the President Trust Co. “[w]hen 72 S.Ct. 863. v. United 126, 137, 785, 304 U.S. 58 S.Ct. 82 incompatible takes measures with the ex- L.Ed. (2) (1938); 1224 sovereign assert the Congress, im- implied or will of pressed munity court, defense a United States ebb, then power is at its lowest he can China, see Nat’l Bank v. City Republic rely only upon pow- his own constitutional U.S. S.Ct. L.Ed. powers minus ers constitutional (3) (1955); benefit from the “act of Congress par- over the matter.” Both doctrine, provides state” which that “[e]v- agree ties that this case into category falls ery sovereign respect state is bound to category three. may the President independence of every sovereign other nonetheless exercise—and the state, and the courts country of one will cannot invade—the “exclusive President’s not sit in judgment on the acts of the power.” Id. at 637 n. 863. The government of another done within own question here is whether exclusive Execu- Co., territory,” Oetjen v. Cent. Leather branch power tive authorizes the Secre- 62 L.Ed. 726 214(d). tary to decline enforce section (1918) omitted). (quotation marks Recognition A. The Power government A typically recog nizes a foreign by state Recognition is “written oral the act Digest declaration.” 1 Moore’s entity “a state itself to commits treat an as Int’l Law § Recognition may also be im regime govern a state or to treat plied as [recognizing] “when state ment of a enters state.” Restatement (Second) negotiations state, into Foreign 94(1). with the new sends § “The Relations Law diplomatic it agents, agents receives such rights and sovereignty attributes of belong officially, gives exequaturs consuls, to its independently [a all recogni state] forms with tion, [and] conventional rela only but it is after it recog has been 6 Id.; Gray Adler, tions.” see also David nized that exercising assured of Power, The Recognition re Moore, Digest them.” John Bassett A printed in The Constitution and Con (1906) Law International Foreign Policy duct American Recognition (Moore’s Digest). Int’l Law (David Gray N. Larry Adler & George is therefore a critical step establishing 1996) (“At eds., law, international the act diplomatic relations with the United receiving of a foreign ambassador States; if the United States does not rec government legal entails certain conse state, ognize a it means the United States quences. reception The of an ambassador “unwilling[] acknowledge constitutes a formal of the sov government in question speaks the sov ereignty state or repre ereign authority territory for the it pur sented.”). ports control.” Banco Nacional de Sabbatino, Cuba earlier, As noted the Supreme Court has 923,11 (1964). Recogni- 5.Ct. L.Ed.2d 804 “textual, directed us to examine the struc- tural, tion also confers other substantial benefits. parties and historical evidence” the example, recognized sovereign For gen- regarding have marshaled “the nature ... erally may maintain a suit in a recognition powers.” exequatur An Ramsey, "document from host ishna B. & Michael Prakash D. country foreign permits Foreign Affairs, a [to consul] that the Executive Power Over 111 Yale 231, (2001). up consul to take consular LJ. functions.” Saikr- V, Originalist also fails to at We first evidence 1430. and, clarify the Constitution’s text. The Feder power par- in recognition the address mention the Papers held contain no of ticular, power is exclu- alist the whether power No. although Federalist sively by the President. 69, by Alexander Hamilton under written “Publius,” to the pseudonym refers The and B. President Writing in ambassadors” clause. “receive Recognition Power as Hamilton characterized clause Evidence Originalist Text and virtually meaningless: it has been a rich theme of [T]hough nor the text of the Constitution Neither declamation,8 a matter of more [it] much in originalist provides help evidence authority[,].... a cir- dignity than scope answering question which will be without conse- cumstance In power. support President’s in the administration of quence recognition power of his lies view and it far con- government; was more President, the exclusively with the Secre- arranged it venient that should tary “receive cites ambassadors” manner, than that there should be II, 3 of the clause of Article Section Con- necessity convening legislature, a alia, stitution, inter provides, branches, every ar- upon or one the President “shall receive Ambassadors minister; foreign though rival of Const., public and other Ministers.” U.S. to take a de- merely were II, § But fact art. 3. predecessor. parted ambassadors, by empowered to receive Hamilton, itself, not he Federalist No. does resolve whether has Alexander printed (George na- W. authority recognize foreign exclusive The Federalist eds.2001). & suggested Carey tions. Some scholars have oth- James McLellan provisions possible er ambassadors constitutional receive necessity mean that he may for the President sources only am- recognition power exercise the but con- “receive” but also to and provisions clude that text of those does bassador decide whether fact, him.9 years five itself resolve the issue.7 when receive 234-35, Reinstein, 7.See, e.g., supra, Ramsey, supra, & & at 809 n. also Prakash Vesting (discussing, finding (interpreting but Executive inconclu- Const., Clause, 1., sive, II, II, § § cl. cl. text of U.S. art. U.S. art. Const., alia, ("The meaning using, eighteenth-century executive shall be vested in a inter Power America.”); power). President of the United States of of executive Const., II, (President § art. cl. 2 "shall U.S. Scholars, nominate, appears, by and with the Advice and have been unable Senate, appoint shall Ambassa- confirm Hamilton’s claim the “receive Consent public and Con- clause "has been rich theme [and] dors other Ministers ambassadors” Const., II, Reinstein, suls”); (“[President] supra, § art. of declamation.” faithfully shall take Care that the Laws be 845-46. executed”) legislative compared pow- Const., Restatement, I, According § ers when set forth U.S. art. els. ambassador, ("The recog- have Power To President receives he shall Nations, by sovereignty regulate implication ... Commerce with nizes See, government. e.g., sending foreign ... uniform Rule of Naturaliza- establish an Re- Foreign tion, ... make [and] ... declare War all Laws (Third) Law Relations statement 204, Reporters’ ("Recognition necessary proper Note 2 which shall be car- Powers”)); receiving foregoing effected rying into Execution the state has been writing after Federalist No. Hamilton whether the United States would ‘recog- interpretation adopted this of the “receive nize’ European nations was non[ ]se- In while ambassadors” clause. quitur.” serv- words, Id. at 861. In other George Washington’s President cab- Framers apparently were not concerned inet, Hamilton, “Pacificus,” writing then with how young country their recognized gave declared that the clause the Presi- other nations because the issue was not dent to determine whether the important to them at the time of ratifica- sending ambassador tion. recognized by should be the United States. Archives, United States National Pacificus History Post-ratification (June 1793), http:// No. available parties Both make extensive argu founders.archives.gov/documents/ regarding ments the post-ratification rec Hamilton ex- Hamilton/01-15-02-0038. ognition history the United States. As plained Legislative Department that “[t]he Supreme Court explained, long organ is not the of intercourse between the standing post-ratification and consistent foreign UStates and Nations---- It practice evidence of constitutional mean naturally Organ therefore not Minn, See, ing. Republican e.g., Party of pronounce is to Government which ex- White, 765, 785, 536 U.S. 122 S.Ct. Nation, isting regard condition with (2002) (“[A] 153 L.Ed.2d 694 universal and ” Rather, Powers.... Id. “[t]he long-established tradition of prohibiting right of the Executive receive ambassa- strong certain conduct creates a presump public dors other Ministers.... in- prohibition tion that is constitution judging, cludes that of ease of a ” omitted)); (quotation al.... marks Mis Revolution of Government in a States, 361, 401, tretta v. United Country, whether new rulers are com- L.Ed.2d petent organs of the National Will and (“Our 200-year extrajudicial tradition of ought to be or not.” Id. recognised service additional evidence that the doc There is little other ratification-era evi- separated powers trine of prohibit does not regarding dence of foreign judicial participation extrajudi certain fact, governments. no “there is record Chambers, activity.”); cial Marsh v. subject of recognizing foreign 77 L.Ed.2d governments states or inup ever came (1983) (“two centuries national Reinstein, Convention.” [Constitutional] practice,” including practice authorized swpra, at One scholar offers two Congress, provides “contemporaneous first First, explanations gap. for this he sug- weighty constitutionality evidence” of gests carefully “the founders enumer- omitted)). (quotation marks We conclude powers ated the President de- longstanding post-ratification practice liberately the recognition power.” omitted supports Secretary’s position case, if 860. But were exclusively holds the branch,

would be if any, unclear power. possessed power. His explana- second plausible: Beginning tion is more “Whether the Eu- administration of our President, ropean accept George Washington, nations would first the United into community their Executive was consid- has believed that it has the ex- importance nation, erable recognize foreign new but clusive nations. diplomatic state.''). representative credentials of a to belonged to send the minister Washington’s cabinet whether

In President Congress President, Washington unanimously see 32 Annals concluded (1818). fact, Congress And, before with the even need not consult post- France’s from receiving minister Clay’s amendment was defeated weakened notwithstanding revolutionary government, House; reason for the “the defeat recognized the receiving his the minister appears to have been the amendment by implication. Saikrish- new interfering the functions of the was with The Ramsey, D. na & Michael B. Prakash Goebel, 124; supra, at see also executive.” Foreign Affairs, Over Executive Power Cong. (1818) (statement 32 Annals of (2001). Nor did Yale L.J. Smith) (“The Rep. giv- Constitution has Washington to tell “purport[] Congress the direction of our en to the President recog- governments to countries or which It foreign nations. is intercourse with Washington The nize.” Id. at 312-13. pow- wise for us to interfere with took sole control of also administration (statement ers____”); of Rep. id. at 1570 foreign to exequaturs consuls. issuing (“[T]he Smyth) acknowledgement of the (President Washington only “not at 313 independence of is an exer- a new Power exequaturs, he also set signed authority; consequently, cise Executive (footnote omit- specting their issuance” to the Executive how Congress for direct Jefferson, ted)); Mem- Thomas see also 3 an power, he shall exercise this act of oir, Correspondence, and Miscellanies Goebel, usurpation.”). According Clay’s to Thomas Papers Jefferson from strength a increase of great defeat “meant 1829) (Thomas Randolph ed. Jefferson “it had for the administration” because (“[T]he Dan- of consul to M. commission ulti- received a direct confirmation nery ought have been addressed to govern- mate to whether right determine being He President of the United States. Goebel, recognized.” su- ment was to be only of communication be- channel at 124. pra, nations, country tween this and, nations or him alone that again, In 1864 Executive from what has agents are to learn is or challenged their branch the individual houses ” (emphases the will of the nation.... been for into the Congress intruding realm added)). eventually recognition, led acting. to refrain from In pre- In President Monroe James asserting resolution passed the House Speaker of the vailed in a standoff acknowledge Archduke it did Henry Clay House over Habsburg Ferdinand Maximilian von Clay “in- power. had announced that he Cong. Globe, of Mexico. Emperor moving of Buenos tended (1864). Cong., The Ayres probably of Chile.” Julius Goe- Sess. 1st 38th then-Secretary to wrote the United States bel, Recognition Policy Jr. The France, (1915). stating recog- Minister to Clay But when executive,” be- “purely nition bill attempted appropriations amend Representa- House $18,000 longing “not to the an American appropriate for tives, America, Congress, but nor even to id. minister be sent South 2475. The Senate ulti- modify the President.” Id. at he was forced mately not act on the bill.10 amendment to manifest that the decision did right subsequently passed an authoritative 10. The a resolu- constitutional House stated, prescribing pertinent part, "Congress declaring and the ... voice in Wilson, said, dead. Foreign Lodge Relations Committee Mr. Senate to the full must now presented joint accept responsibility resolution entire recognize Cuba’s in- Mexican purporting Senate relations.” Wilson Rebuffs Sen- Cong. Mexico, ate dependence. Times, N.Y. Dec. Rec. (1896). then-Secretary responded http://query.nytimes.com/mem available at to /archive-free/pdf?res=9C00 with a statement “rec- ognize Republic of Cuba the so-called as E2DD123BEE32A2575AC0A964 solely an with independent State rests the 9D946896D6CF. Executive”; joint resolution would have Zivotofsky marshals several isolated only great weight.” Eugene “advice of V. in support events of his position that the Rostow, Cases Law: Great Make Bad The recognition power does not repose solely in Act, 50 Tex. L.Rev.

War Powers 866-67 they the unconvincing. Executive but are omitted); see (quotation marks also First, Zivotofsky argues in 1898 the Powerless, Congress Times, Dec. N.Y. passed joint Senate resolution stating http://query.nytimes. available at “the of Government the United States com/mem/archive-free/pdf?res=F10D13F hereby recognizes Republic the of Cuba as 73B5F1B738DDDA90A94DA415B8685F0D the true and lawful Government of that Again, 3. Senate did not act on the the Appellant Island.” Br. for But review proposed joint resolution. Congressional the Record shows that In Congress again quoted the once re- the language was not included in resolution; joint rather, lented in the response as- it was includ- joint sertion of ed in recognition power. proposed exclusive in resolution Cong. (1898). year, That Senate a resolu- considered Senate. See Rec. withdrawing tion which recommended And proposed separa- rec- resolution raised ognition then-existing gov- Mexican tion-of-powers many concerns with Sena- Report Hr’gs (statement ernment. Prelim. & tors. See id. at 3990 of Sen. of the Comm, Foreign Relations, Gorman) (“I regret exceedingly for the Sen. Investi- gation Affairs, history country, S. Doc. No. 66- first time in this of Mexican (2d. Sess.1919-20). great at In body incorporate 843D should ... a sponse, which disputed by every President Woodrow Wilson in- has been Execu- resolution, Congress Washington formed the tive right from down—the enacted, if Congress by provide would “constitute a reversal of the recog- law (statement state.”); our practice might constitutional nition of a at id. lead to very grave regard (calling confusion Sen. Allison amendment “con- guidance of our affairs” principles” be- travention of ... well-settled initiative directing cause “the the rela- and Executive “alone can deal foreign gov- question aspects”)); tions of our Government with its final id. at 3991- (statement (“We Aldrich) assigned by ernments the Constitution of Sen. have Executive, Executive, right to the no at such time to exercise func- Executive.”). only.” belong half hour of ‘Within tions that to the reeeipt[,] Lodge, letter’s Senator proposed Chair- When the House received the man Foreign Committee, resolution, joint Relations removed the announced joint resolution was clause. See resolu- [ ] id. The Corwin, new other Powers as in mat- resolution. Edward S. The Presi- Cong. Globe, Cong., Foreign ters dent's Control Relations ...." 38th 2d Sess. 65- Senate acted (1864). (1917). never on the right constitutional ion as to the strict

tion, only peo- that “the passed, stated independent.” “free Executive, in con- apart of Cuba were either from or ple” 20,1898).11 (Apr. 30 Stat. 738 Senate, the sub- junction with the over Rather, merely enlisted ject.”). Jackson events that oc- relies on Zivotofsky also a matter of Congress support Pres- during the administrations curred event, Jackson President ident Andrew In the Con- political prudence. instances, In both Lincoln. Abraham the rec- gress attempt exercise did however, attempt did Instead, its own. ognition power on Instead, recognition power. exercise funds for the Pres- Congress appropriated to be used appropriations it authorized “diplomatic agent ident to authorize a diplomatic repre- dispatch President Texas, Republic whenev- sent Jackson sentatives. ... er President of the United States to “unite” with the expressed a desire to such expedient appoint it shall deem Texas in- Congress recognizing before (1837). Similarly, minister.” 5 Stat. 107 Message dependent from Mexico. from expressed a desire to President Lincoln Upon the United States the President of Congress by request- coordinate with the Subject Political, Military, of the authority it use appropriations Texas, H.R. Doc. No. of Civil Condition recognition to of Liberia and endorse Sess.1836). (2d 24-35, doing But in at 4 First Mes- Annual Haiti. See Lincoln’s so, that he lacked suggest Jackson did (Dec. 3, 1861), sage Congress to available recognition power. id. the exclusive http://www.presidency.ucsb.edu/ws/? at (“[0]n ground expediency, 2 of I am pid=29502. Congress subsequent- And the therefore, concur, not, to disposed and do 12 any ly it to so. Stat. 421.12 necessary express opin- did consider ("I my joint provided thought duty, in accordance with the in "Re- 11. The resolution full: Represen- general people, Senate and House of sentiment of the American solved prepared, upon contingency in tatives the United States America to stand assembled, people permanent gov- First. That by her of a the establishment ernment, are, right ought of Cuba and of indepen- Island the first welcome be, independent.” 30 Stat. 738 free Hungary family of nations. For dent into 20, 1898). (Apr. agent Eu- purpose I then in invested willingness rope to declare our Zivotofsky also calls attention to the our independence promptly recognize her in recognition Hungary during President (emphasis ability her to sustain it.” event of Zachary Taylor’s The administration. Secre- added)). Taylor’s uncertainty, Whatever tary appointed wrote to the President’s minis- to otherwise sounds alone in stark contrast Hungary: ter to "Should the new post-ratification history. seamless stable, be, your opinion, prove to firm and addition, American Jewish Com- cheerfully Amicus the President will recommend to session, supplies examples of Presidential Congress, recogni- next mittee other at their See, Clayton Congress's support. Hungary.” of the tion of Letter from enlistment (June 18, 1849), e.g., Jewish Amicus Br. at 9- reprinted in 1 Am. Committee Mann Moore’s 75, diplo- (Washington removing considered Digest Int’l L. ar- 10 authority Taylor’s and in- gues that uncer- matic of France’s minister the letter manifests message tainty regarding au- Thomas Jefferson draft his exclusive structed diplo- stating thority. he intended to remove Genet's But another from communication authority objected). either Taylor made he matic unless house President clear that under- acknowledge expressly recognize of them either that he was authorized to None stood recognition power by implication Hungary Congress. 5 was without See A Com- Constitution, shared, Messages Papers with the pilation one under the Presidents, (James unpersuaded by Congress. We are also ami- at 12 D. Rich- ed.1897) (State address) Secretary James Bu- citation to State ardson of the Union cus’s

211 Supreme organ Precedent “sole Court nation its external relations, and its sole representative with undisputed It that “in the foreign nations.” Curtiss-Wright, arena, the has ‘a foreign affairs 319, U.S. at 57 S.Ct. (quoting An- degree of discretion and freedom from Cong. (Mar. 7,1800)). nals of statutory restriction would not be alone in admissible were domestic affairs Supreme Court has more York, City volved.’” Clinton v. New than once declared 445, 2091, 417, U.S. 141 L.Ed.2d exclusively lies with the President. (1998) (quoting States v. Cur Co., See Williams Ins. U.S. Suffolk tiss-Wright Export Corp., 299 U.S. (1839) 13 Pet. 10 L.Ed. 226 (1936)). 57 S.Ct. L.Ed. 255 (“[If] the executive branch ... assume[s] pow While affairs the President’s fact in regard sovereignty defined, Youngstown precisely ers are not country, island or it is conclusive on the Saivyer, Sheet & Tube Co. v. judicial department^]”); United 72 S.Ct. 96 L.Ed. 1153 Belmont, (Jackson, J., concurring), the courts have (1937) (“[T]he 81 L.Ed. 1134 had Executive recognized long presump the President’s speak organ as the sole See, tive dominance matters abroad. government” in “recogni th[e] matters of Garamendi, e.g., v. Am. Ins. Ass’n 539 tion, relations, establishment of diplomatic 415, 2374, 396, U.S. 123 156 L.Ed.2d S.Ct. assignment, and agreements with re (“[0]ur (2003) recognized 376 cases have spect ”); thereto.... Guaranty Co. Trust authority States, the President has make 138, 126, v. United 304 U.S. 58 agreements’ (1938) (“We with other coun 785, ‘executive S.Ct. 82 L.Ed. 1224 ac tries, requiring by no ratification the Sen cept as conclusive here the determination by Congress, ate or approval of our State Department own having early been exercised since the Russian was represented by State Pro years Government....”); Republic.”); Youngstown, of the 343 visional United States 610, (President Pink, 229, 203, 552, U.S. at 72 863 S.Ct. has v. 315 U.S. 62 S.Ct. 86 (1942) (“The responsibility “vast share of for the con L.Ed. powers 796 of the Pres relations”) (Frankfurt foreign duct of our foreign ident the conduct of relations er, J., concurring); Eisentrag v. power, Johnson included the without consent of the er, 789, 763, 936, Senate, public 339 70 94 U.S. S.Ct. to determine the (1950) (“President respect L.Ed. 1255 is the United exclusive States to the Rus ly responsible” diplomatic for [including “conduct of sian nationalization decrees.... affairs”); Legal gov Assistance t]h[e] [to determine] the for Asylum Dep’t Vietnamese Seekers v. be recognized.”); ernment Baker v. State, (D.C.Cir.1997) Carr, 1349, 186, 691, 213, 104 F.3d 1353 369 U.S. 82 S.Ct. 7 (“[C]ourts (1962) (“[I]t wary have been of second- L.Ed.2d is 663 the executive guessing executive in a person’s repre decisions] branch that determines status as complicated volving foreign policy foreign government.”); mat sentative of a Ban ters.”). Thus, Court, Sabbatino, echoing co Nacional de Cuba v. 376 923, 398, 410, then-Congressman words of Mar 84 11 804 John U.S. S.Ct. L.Ed.2d (“Political shall, exclusively as the described President Government, by "recognition agent chanan’s observation that usu- Consular to the new or effected, to, ally Congress.” by a an act Di- either nomination 1 Moore's Int’l L. gest Diplomatic confirmation the Senate of a at 245-46. 212 Executive.”). sure, de-recognized had of the To be

a function Castro, under Fidel government Cuba’s has not held that President the Court ' “[pjolitical recog- explained the Court But, us— exclusively power. holds Exec- exclusively nition is a function court—“carefully considered an inferior utive.” 376 U.S. at 84 S.Ct. 923. Court, even if Supreme language emphasized that were to decide Court dictum, generally must be technically de-recog- had been for itself whether Cuba authoritative,” v. States treated as nized, “possibility there would be real (D.C.Cir.2006) Dorcely, 454 F.3d embarrassment to the Executive Branch omitted); see also Co- (quotation marks Id. at handling relations.” (6 Wheat.) 264, Virginia, 19 hens U.S. S.Ct. 923. (1821) (Marshall, C.J.), L.Ed. D. Roosevelt’s 1933 President Franklin Supreme if Court has especially the Soviet Union led dictum, Overby v. Nat’l peated three cases the conclusion supporting Carriers, Letter 595 F.3d Ass’n of exclusively recog- holds (D.C.Cir.2010) dic- (Supreme Court Belmont, 324, 57 power. nition 301 U.S. if “especially” tum authoritative “the Trust, 758; Guaranty S.Ct. U.S. Supreme Court has reiterated the same 785; Pink, U.S. teaching”). 552. On November the United Insurance Com- Williams recognized the Soviet Union as the Suffolk the Court was pany, the issue before government of as an Russia “and incident ... consti- whether “the Falkland islands recognition accepted assignment to that (known dominions any part Assignment) tute within the as the Litvinov of cer- Pink, tain claims.” sovereignty of Buenos Assign- the Litvinov S.Ct. 552. Under Ayres.” at 419. The Court decid- ment, no agreed the Soviet Union “take in matter ed that the President’s action steps against to enforce claims American judicial depart- was “conclusive on the nationals; but all such claims were at ment.” Id. leased and to assigned the United States.” doubt, any can there be that when And Belmont, at U.S. S.Ct. government, the executive branch of the sought the United States to collect When foreign with our rela- charged which is claims, assigned on the action spawned tions, correspondence shall in its with a in the litigation resulting three cases. regard a fact in foreign nation assume Belmont, In the Court held that New country, or sovereignty the of island conflicting public policy York did State’s judicial depart- it on is conclusive the prevent the not United States from collect- ment? And in this view it is not materi- ing assigned by Assign- assets the Litvinov inquire, province al is it nor at ment. Id. 758. It noted S.Ct. determine, execu- Court to whether the sovereign a territory that “who is the is It is right wrong. enough be tive a judicial question, not but one the deter- know, that in the exercise of consti- by depart- mination of which political functions, tutional he decided conclusively ments binds the Id. courts.” question. Having done under added). (emphasis at S.Ct. him, belong to it responsibilities which specifically But ex- the Court then more govern- obligatory people and plained “recognition, establishment ment of the Union. relations, assignment, and diplomatic Similarly, thereto, Id. in Banco Nacional de Cuba all agreements respect were Sabbatino, plainly “with- determining parts whether of one transaction” and without competence power in the President.” Id. includes the pol- determine the added). icy (emphasis govern at 57 S.Ct. 758 the question of Moreover, recognition. Objections “in of what done respect underly- was to the here, speak objections the Executive had as well as to recog- organ government. nition as the sole are politi- addressed agreements and in connec- cal assignment department and to the not, tion therewith as in case courts.... did treaties, require the advice con- and (citations at Id. 62 S.Ct. 552 omitted added). (emphases sent Senate.” Id. added). emphases and words, In only empha- other Court The Court also the recognition treated sized the President’s exclusive belonging exclusively Ex- distinguished also it from the but explained ecutive Baker v. Carr. It treaty power. shared “recognition government[ [a] ] so Trust, Guaranty held that Court strongly judicial defies treatment payment claim funds without executive recognition formerly by held in a bank account owned republic state has been called a of whose by Russia New York was barred State’s nothing.” existence we know at 369 U.S. statute of limitations. 212, 82 691 (quotation marks 143-44, In so doing, 58 S.Ct. 785. relied omitted). footnote The Court further ex- on the Executive branch’s de- plained judiciary that “the ordinarily fol- “government termination: which is to be lows the executive as to which nation has regarded representative here as of a for- sovereignty disputed territory” over is a eign sovereign political state rather that “it is the executive that determines a judicial question, than a and is to be deter- representative status as for- person’s of a by political department mined eign 212-13, government.” government.... accept We as conclusive added). (emphases here our the determination own State Zivotofsky relies on United States v. Department Russian State was Palmer, 4 L.Ed. Wheat. represented by Govern- the Provisional (1818), where the Court stated that (em- ment.” Id. at 58 S.Ct. 785 “the courts of the union must view [a] added). phasis newly constituted Pink,

Finally, Supreme Court in fol- legislative viewed executive Belmont, that lowing held New York State departments of the the government of “deny could not a claim enforcement of United States.” See id. at 643. But this Assignment under the Litvinov of because simply judicia- that observation means the Pink, overriding policy.” 315 [state] ry question recogni- will not decide the of 222, U.S. at 62 552. The S.Ct. Court High tion. When the has Court discussed broadly recognition power defined the and recognition power specifici- the more with in placed it the hands of the President: eases, ty, as it in the has did above-cited potvers merely judiciary the President in the con- not that stated the lacks of foreign duct of relations included the decide but to the issue instead Senate, power, explained that the without consent to has has of addition, authority. determine the In public of the Unit- exclusive Zivotof- sky’s respect ed States with to the Russian reliance Cherokee Nation v. Geor- 1, (1831), nationalization 30 5 Pet. L.Ed. gia, decrees.... That author- U.S. 8 25 a ity misplaced is not limited to determination of as the case dealt with the which, recognition It Indian recognized. of tribes 214 “passport power,” pursuant explains, turn opinion itself Nation

Cherokee 214(d) alleged na- foreign from section have materially distinct are (Marshall, C.J.); see whether enacted. We must decide tions. id. 18 been Ind., passport Indians Congress validly Nation exercised its also Miami of of Interior, 214(d) enacting 255 F.3d or wheth- Dep’t power Inc. v. section U.S. Cir.2001) (“Indian (7th 214(d) tribes are 345 intrudes” “impermissibly er section [states]____”).13 foreign recognition on the President’s exclusive V, Zivotofsky 132 at 1428. power. S.Ct. Having the Constitu reviewed structure, Supreme Court section Zivotofsky first contends tion’s text and 214(d) longstanding post-ratifica permissible and a exercise of the Con- precedent the Presi power.” In history, gress’s “passport we conclude its remand us, to de exclusively holds Supreme dent Court directed we recognize foreign alia, examine, parties’ evidence termine whether inter ... sovereign.14 passport “the nature of regarding party power[ at 1430. Neither ].” “Passport and the C. Section has made clear the textual source Recognition Power” vis-a-vis the Constitution, sug- Power may come from the Con- gesting regarding gress’s power immigration that the President ex- Having concluded See, e.g., Arg. commerce. Oral Tr. recognition power, we clusively holds early Zivotofsky points legal cases he scholar also cites three other recognition power including ship, indicate the lies contends treatise written William They "political departments.” in- legislature possesses both "The indeed Rawle: Bush, U.S. clude: "Boumediene v. 553 superior power, may declare its dissent L.Ed.2d [128 41] S.Ct. refusal, from the executive or but ('[T]he questions sover- Court has held that declared, until sense is act of the eignty political to de- for the branches are Rawle, binding.” A executive is William View Connell, cide.’); Vermilya-Brown v.Co. the Constitution the United States [69 76] S.Ct. 93 L.Ed. (Philip H. Nicklin 2d America ed. (1948) ('[T]he sovereignty determination of 1829). Joseph Story Justice wrote legislative over is for the and executive an area recognition question was an "abstract departments....’); v. United Jones [and] under the constitution” that was statement!] States, [11 Story, open Joseph "still to discussion.” (1890) ('[A]ll justice are L.Ed. courts of 691] Commentaries on the Constitution the Unit judicial notice of the territorial bound to take (Little ed & Brown 2d ed. gov- jurisdiction by the extent exercised Moreover, 1851). ”[t]he while constitution administer, they or of whose ernment laws expressly has invested executive with sovereignty or denial ambassadors, power to receive and other public appearing power, as from the expressly con [i]t ministers invested executive....').” legislature acts gress power, repudiate, with the either brief). (emphases Appellant But Br. for acknowledge (emphasis Id. at them.” Boumediene, Vermilya-Brown and Jones do added). Subsequently, sitting while as a Cir foreign pow- recognition of a not involve the Justice, Story ”[i]t cuit Justice wrote that er; rather, authority they to the of the relate clear, very belongs exclusively that it territory. given Because United States over a department government of our executive Congress constitu- has the enumerated time, recognize, govern from time to new power Rules and tional to "make all needful ments, may political revo arise in Regulations Territory respecting the or other States,” of the world....” Williams lutions Property belonging to the United U.S. Suffolk 1402, Co., (C.C.D.Mass. IV, 3, 2, 1403 Ins. 29 F. Cas. cl. the three cases are art. Const., 1838). distinguishable. (Zivotofsky’s noting passports 48^19 counsel “there’s in issuance connection specific power no in the Constitution that foreign affairs has never been seriously says referencing and passports” Con- questioned.”). gress’s authority immigration “over [and] Supreme relies on commerce”); Ap- over international Br. for that, contends, Court precedent he shows I,

pellee (citing 8,§ Const., art. els. U.S. regulate the Executive passports cannot 4). 3, Nonetheless, it is clear that Congress unless the has him authorized Congress legislative pow- exercised its cited, do so. In both cases the Court held subject passports. er to address the It that the Executive branch acted properly not, however, does have exclusive control Congress once the had it to authorized so Rather, over all passport matters. Haig, 282, 289, 309, act. See at U.S. long Executive branch has been involved (upholding S.Ct. 2766 au Executive in exercising power, the passport especial- thority to passport revoke on national se ly if foreign policy Haig is implicated. See curity and foreign policy grounds after 280, Agee, 2766, 453 U.S. 101 S.Ct. concluding by revocation was authorized (1981). 1856, L.Ed.2d 640 pass- Until no Rusk, Congress); Zemel v. port common statute existed and so “the 85 S.Ct. 14 L.Ed.2d 179 (up was that perception pass- the issuance of a holding Department’s State refusal to vali port was committed to the sole discretion passport date for travel to Cuba because of the Executive and that- the Executive Passport “the Act of 1926 embodie[d] in power would exercise this the interests (cita grant authority Executive” of the security foreign policy national and omitted)). But in neither case did the of the United States.” Id. at Court Congress’s power state passport S.Ct. 2766. After the first law Indeed, over passports was exclusive. was enacted President and “[t]he Haig, Court made clear that it did not Secretary consistently State con- Haig, decide that issue. 289 n. U.S. at strued the 1856 Act to au- their preserve (“In light 101 S.Ct. 2766 of our decision thority to withhold on passports national issue, we no have occasion in this security grounds.” foreign policy scope very case to determine the 101 S.Ct. 2766. And once delicate, plenary and exclusive power Passport enacted Act organ the President as the sole 1926, each successive President interpret- federal in the field of interna ed to give the Act him the tional relations-—a which does not passports control the issuance of for na- require as a basis for its act of exercise an security tional or foreign reasons: ” omitted)). Congress.... (quotation marks “Indeed, an unbroken line of Executive Likewise, Zemel, in effect Court Orders, regulations, instructions to consu- rejected imply officials, dissenters’ statements lar passport notices hold- ers, Congress exclusively regulates Department the President passports. 381 U.S. at State left no doubt that likelihood dam- J., (Black, dissenting) (“[Regulation of age to or security foreign policy national passports law-making—not is a ex single the United States was most ecutive, ”); important law-enforcing-—-function.... id. criterion in deci- (foot- J., (Goldberg, sions.” Id. at 85 S.Ct. 1271 dissent (Executive added); ing) notes omitted and “an inherent emphasis lacks Op. also 16 Off. 23 to travel Legal prohibit impede by restricting Counsel (1992) (“Executive Instead, to the passports”). action control the the issuance

216 214(d) no inter- causes such the that section “Congress—in that emphasized

Court reach, limited that mat- ference its over because Executive giving the is, necessity regulates it one detail of one simply affairs—must of ters of Presi- type passport. limited But the than that it with a brush broader paint power “is limited recognition Id. dent’s to areas.” customarily wields domestic to 17, Thus, a determination while the at 85 S.Ct. 1271.15 power “includes recognized”; also passport to enact Congress has policy govern to determine the which is to not exclu- passport power its is legislation, Pink, 315 pur- question recognition.” Congress legislates if the sive. And 229, Applying at 62 S.Ct. 552. passport power non-exclusive U.S. suant rule, York Pink Court held that New way infringe on Executive in such a Litvi- policy superseded by was legislation presents sepa- a State authority, the See, policy—which when the problem. e.g., Assignment Free nov powers ration of give effect to claims under the Accounting v. Pub. Over- declined to Enter. Fund Co. — -, 3138, Bd., Assignment—“collided] Litvinov with and 130 S.Ct. sight (2010) (Sarbanes-Oxley recogni- from the [President’s subtracted] L.Ed.2d policy” by “tend[ing] removal restore some tion] Act’s dual for-cause limitations on friendly precise impediments oversight of financial board of members intended powers on lations which separation unconstitutional 714, Id. Synar, policy. remove” with ground); Bowsher v. 478 U.S. at 552. 92 L.Ed.2d 583 62 S.Ct. S.Ct. (“[E]ven the results constitutional ov With the may be legislative process unconstitutional not, Zivotofsky erlay, section if those are in fact destructive of results asserts, simply—and legislation that neu separation-of-powers.”). the scheme of trally—regulates the form content Instead, answer, Secretary ex passport. as the question we must 214(d)—which carefully into then, headlong runs plains, whether section longstanding in Executive only passports—nonetheless calibrated speaks neutrality toward Jerusa policy President’s exclusive branch terferes with presidents lem. American recognition power. Zivotofsky contends Since not denied nor does 15. Amicus Members of the United States Sen- Represen- Zivotofsky assert the violation a constitu- ate the United States House of Dulles, Moreover, holding right. itself rely on the in Kent v. tional Court has tatives not treated Kent if it held that the Execu- S.Ct. L.Ed.2d Kent, (1958). passports entirely successfully regulation tive's de- two citizens In congressional Secretary's pendent challenged the of their authorization. denial Haig, passports—on ground they U.S. at 289 n. 101 S.Ct. 2766. refused to Zemel, communists—argu- they example, distin- were For Court state whether alia, that, guished denial their Kent on the basis Kent had inval- inter violated Department’s "based process right idated the State denial Fifth due of travel. Amendment 117-20, 125, particular applicant.” at But Kent on the character of the 78 S.Ct. 1113. contrast, held, most, congressional au- 381 U.S. at S.Ct. absent thorization, upheld Department was based on could not denial Zemel State affecting all deny passport "foreign if a consti- considerations the denial violated citizens”—namely, avoiding danger right. See tutional id. ("If liberty regulated, travel Cuba United States citizens is to be [constitutional] dangerous lawmaking "might inter- pursuant func- involve Nation it must be (quotation Id. at Congress.” national incidents.” tions of the marks Here, omitted)). Department State steadfastly recognize any capital have declined Jerusalem as either the of city Isra- city. foreign sovereignty el, nation’s over that city or as a within sovereign located branch has made clear The Executive added). territory of Israel.” Id. (emphasis of Jerusalem must be decided status “[Rjeversal of policy United States not to in unilaterally by States but a prejudge central final status issue could involving of a all of the context settlement provoke uproar throughout the Arab and parties. supra p. the relevant seriously damage Muslim world and our implements State FAM Department friendly relations with Arab and Islamic by policy neutrality branch Executive governments, adversely relations affecting citizen’s designating how Jerusalem-born range issues, of bilateral including place notes his of birth. For trade and treatment of Americans abroad.” in applicant Zivotofsky, like who was born (JA 61). Secretary’s Id. at 11 findWe after emphat- Jerusalem the FAM is explanation of detailed the conflict be- ic: birth denote as “Jerusa- 214(d) tween section and recog- Executive (JA 115); lem.” also 7 FAM 1383.5-6 see nition policy compelling, especially given 127) (JA pt. 7 FAM Ex. II 1383.1 “our customary policy to accord deference (stating that “Israel” not include “[d]oes to the President in foreign matters of af- applicants Jerusalem” and that for born Obama, fairs.” Ameziane v. 699 F.3d “Jerusalem,” Jor- “[d]o not write Israel or (D.C.Cir.2012) (quotation omit- marks dan”). In his interrogatory responses, ted); also v. Immigration Jama & significance Secretary explained the Enforcement, Customs “Any FAM’s Jerusalem directive: unilat- (not- 160 L.Ed.2d 708 eral action the United States that would customary “our policy deference to signal, symbolically concretely, or foreign the President matters of affairs” recognizes that city Jerusalem is “may implicate our relations for- with sovereign territory located within the eign powers requiring] consideration critically compromise Israel would the abil- changing political and economic circum- ity of the United to work Is- with omitted)); (quotation stances” marks raelis, Rat- Palestinians and others Holder, gion process.” tigan to further the peace Def.’s F.3d (D.C.Cir.2012) Resps. to Pl.’s Interrogs. (finding government’s “the Zivotof- State, sky Sec’y ex rel. No. arguments quite powerful, especially given (D.D.C. 2006) (JA 03-cvl921 June 58- the deference owed the in cases executive 59). Furthermore, Palestinians “[t]he implicating security” (quotation national would change view United States with omitted)). By attempting marks to alter respect to Jerusalem as an endorsement of Department’s pass- State treatment of rejection Israel’s claim Jerusalem and a port Jerusalem, born in section applicants (JA 59) of their own.” Id. at (emphasis 214(d) directly carefully contradicts con- added). “[wjithin Thus, framework sidered exercise of the Executive branch’s sensitive, this highly potentially vola- recognition power. tile, political, juridical, mix religious reading Our an at- section considerations, U.S. Presidents con- have tempted legislative articulation of sistently maintain endeavored to a strict policy Congress’ consistent policy of not prejudging Jerusalem legislation. By characterization of the status engaging issue thus not in offi- terms, cial recognize, might actions own section was enacted to would perceived constituting of, alter toward Moreover, ear- Secretary as the averred 214 is of section The title Jerusalem. to Je- 2002 of Respect litigation, with in this enactment Policy lier “United States Pub.L. Capital strong reaction “provoked of Israel.” rusalem as section (em- East, though § 116 Stat. at throughout 107-228 the Middle even No. 214(a) added). explains Section said phasis signing in his statement the President its commit- Congress maintains that “[t]he not be construed provision that would Em- relocating the United States ment to policy and that mandatory as assured ‘U.S. ” urges and bassy in Israel Jerusalem changed.’ has not regarding Jerusalem immediately begin ... 9-10, Interrogs. at Resps. Def.’s to Pl.’s States relocating United of process Sec’y Zivotofsky ex rel. of Jerusalem.” in Israel Embassy (D.D.C. State, June No. 03-cv-1921 The House 214(a), 1365-66. at Stat. (JA 59-60). 2006) example, For various the bill accompanying report Conference as- groups Palestinian issued statements Author- Relations Foreign that became serting “undermine[d] that section “eon- that section 214 explained ization Act peace of sponsor of as a role the U.S. related to the rec- provisions tainted] four Palestinian, process,” “undervalu[ed] capital.” as Israel’s ognition of Jerusalem and rights in Jerusalem” Arab and Islamic (Sept. at 123 Rep. H.R. Conf. position about the real questions “rais[ed] 2002). of the members Various Jeru- of the U.S. Administration vis-á-vis purpose of section explained (JA 60) (quotation marks salem.” Id. at 214(d) policy States to affect United was omitted). Pink, Secretary’s en- As and Israel. See toward Jerusalem 214(d) “would collide forcement of section Cong. H6,649, H6,649 Sept. (daily ed. Rec. from the [President’s] with and subtract Diaz-Balart) 2002) (statement Rep. of “helping] alive source policy” by keep one (“This requires compliance legislation and of friction” between the United States rec- Embassy Act16] Jerusalem [the East parties in conflict in the Middle capital Isra- ognizes as Jerusalem “which the was de- policy (statement Rep. el....”); H6,653 id. Pink, signed to eliminate.” (“[The provisions to Hyde) contains bill] 552.17 Em- compliance with Jerusalem spur [the Secretary has Zivotofsky argues that Jerusalem as the bassy recognizing Act] will not suffer—adverse not suffered—and (statement Israel.”); Rep. capital id. by issuing him foreign policy consequences Lantos) (“Our United bill reaffirms as place that lists his of birth the undivided and policy that Jerusalem is Secretary has Israel.”); Israel. He asserts capital eternal the State that, time, from the State S9,403 admitted time Cong. S9,401-02, (daily ed. Rec. Helms) inadvertently 2002) (statement Department pass- issued Sept. Sen. (“This birth to ports with “Israel” as the right recognize[s] bill.... there eap- citizens born Jerusalem name Jerusalem its own Israel to it[a]l....”). is no evidence that the issuance recognition power. Embassy exclusively exercises the Act is discussed 16. The Jerusalem state, may Congress, impermis- supra atpp. like 200-01. power. sibly intrude on exclusive Executive then, Pink, assertion, Zivotofsky's Contrary legislation 17. Unlike here Congress, rather than a state fact with the President's conflicts legislature, Congress, enacted section does by the not a was enacted hold, But, distinguish today this case from Pink. we the President state. (“[Fjoreign policy in harm to the passports province resulted [is] Executive.”) responsibility (quota- interests. Similar- States’s Department omitted); rec- ly, Zivotofsky cites State Haig, marks U.S. at that, revision, (“Matters referred to “Je- ords before intimately 101 S.Ct. 2766 rusalem, Appellant Br. Israel.” to foreign policy related secu- national Likewise, Organization of Amicus Zionist rity rarely subjects judicial proper are exhaustively catalogues intervention.”). America official As Executive—the websites that contained “Je- organ “sole of the nation in its external rusalem, Israel” before recent revisions. relations,” Curtiss-Wright, 299 U.S. at single “not a Zivotofsky further notes that 319, 57 S.Ct. 216—is the one branch group Palestinian or Arab interest deemed federal before us19 and both important enough to an it submit amicus the current Executive branch as as its well Supreme in the Court con- curiae brief 214(d) predecessor that believe section 214(d) tending that should not be section foreign would cause policy adverse conse- ap- (and group enforced” nor has such quences in presented fact evidence during in court peared lengthy our that it had foreign policy caused conse- litigation. Br. 3. Zivo- Appellant’s Reply quences), that view is on conclusive us. tofsky Secretary’s also contends Nixon, United States v. 418 U.S. Cf. exaggerated fear harm is because sec- 710, (1974) 94 S.Ct. 41 L.Ed.2d 1039 214(d)’s is not passport directive un- (“[T]he traditionally courts have shown the an like its Taiwan directive allows utmost deference responsi- to Presidential specify applicant born Taiwan to as his bilities .... involving foreign policy consid- “China,” than birthplace “Taiwan” rather ----”). Moreover, Zivotofsky’s erations has peacefully imple- which directive been earlier, Department’s liance on the State Appellant mented. Br. for 54-56.18 “Jerusalem, incidental references Isra- el” or inclusion of passports “Israel” on the Nonetheless, we equipped are not of United States citizens born Jerusa- second-guess regarding the Executive entirely misplaced. lem is The controver- consequences of policy section sy does not arise 214(d). because website See, e.g., Chi. Air & S. Lines passport one time included a reference 103, 111, Corp., Waterman S.S. 333 U.S. Rather, (“[T]he connecting Jerusalem and Israel. (1948) very 92 L.Ed. the unconstitutional intrusion from results nature of executive as to decisions 214(d)’s attempted section alteration of political, judicial.... They policy are policy require States United State Judiciary of a kind for decisions Department to take and inten- nor aptitude, respon- neither facilities official sibility tional action to include “Israel” on the long belong and have been held to of a States born in political power subject domain of United citizen judicial legislation fact inquiry.”); intrusion or Jerusalem. While the also Dep’t Egan, policy relating Navy merely touches on a to rec- unconstitutional, ognition does L.Ed.2d not make Department The State included "Taiwan” While an amicus brief has been submitted passports only determining repre- after that do- fifty-seven on behalf six senators ing poli- so was consistent with sentatives, United they speak of course do not for the China; contrast, cy part is a Taiwan qua Congress. 214(d) section with the inconsistent neutrality regarding States’s Jerusa- lem. Second, 214(d) so; Zivotofsky argues that Presi- not do instead does section George signing Bush’s state- dent W. intended force Congress plainly is, in his ment—indicating that from section to deviate its dec- Department State view, because neutrality on unconstitutional—is invalid what ades-long position instead vetoed the enact- any, sovereign if he should have government, nation or register objection. sign- Accordingly, we conclude ment over Jerusalem. if the 214(d) is irrelevant. Even intrudes statement impermissibly that section we were before us and recognition power signing statement on the wanting, were somehow find unconstitutional. is therefore have no effect on conclusion would Secretary’s of section enforcement Remaining Arguments Zivotofsky’s D. today. challenges Secretary’s Zivotofsky 214(d) to enforce section declining

decision but we find both grounds on two additional reasons, we affirm the foregoing For merit. grounds without dismissing judgment of the district court complaint ground on alternative First, Zivotofsky contends that section 214(d) impermissibly infringes that section 214(d) Department’s remedies the State recogni- on the exercise discriminatory policy against supporters of exclusively in him un- power reposing an Israel. He notes that individual born un- der the and therefore Constitution may after list his Tel Aviv or Haifa as constitutional.20 either “Israel” or his local place of birth including birthplace objects if he “Isra So ordered. 114). (JA An el.” 7 FAM 1383.5^ after as individual born in Jerusalem TATEL, concurring: Judge, Circuit discussed, may we have not choose be fully in court’s country locality; rather, Although I concur tween a and separately my I opinion, be write elucidate place of birth must listed “Jerusa (JA 115). thinking Zi novel important lem.” 1383.5-6 about See FAM case question matter votofsky separation-of-powers laments that where “[n]o argument that may presents. Secretary’s an American citizen Jerusalem 214(d) on Section is unconstitutional turns born ... he or she does have first, arguments: subsidiary to American citizens born two option given sovereigns be- recognize foreign whether to Tel Aviv or Haifa choose second, alone; city country longs Br. to the President record the birth.” 214(d) do interferes with the 57. We not decide the Section Appellant pow- of this contention because Zivotof President’s exclusive exercise merits begin I sky it in court and it er. But think best to did not make district See, helps these e.g., issue that underlies and frame is therefore waived. Jicarilla Interior, questions, namely, recognition power Con- Apache Dep’t Nation v. U.S. (D.C.Cir.2010). 1112, 1117 gress’s power. passport so-called 613 F.3d Zivotofsky's development no remand because factual 20. The district court dismissed See, presented ground complaint necessary e.g., on the decide the case. Timbi- question. Zivotofsky Salazar, nonjusticiable political F.3d sha Shoshone Tribe III, F.Supp.2d at 99. While the district (D.C.Cir.2012). merits, we did not reach the need not court I. Secretary stitutional begin must establishing that the recognition power in beyond dispute Congress’s It is im- exclusively fact inheres in the President. commerce, migration, natural- because, This is explains, the court powers regulate ization authorize it Op. Court’s at a President may 214-16; passports. Op. See Court’s incompatible “take[] measures with the Secretary’s Br. 45-46 (acknowledging expressed ... of Congress” only will when “Congress ... has the constitutional he pursuant acts to an “exclusive” Execu- generally regulate the form power. Youngstown tive Sheet & Tube Co. passports and content of in furtherance of Sawyer, & n. powers”). enumerated (1952) (Jackson, 96 L.Ed. 1153 stop have would us there. He reasons J., If concurring). the Constitution en- that because has the recognition power trusts the exclusively to regulate passports and because Section President, Secretary claims, as the 214(d) legislation, the statute is there remains the even ques- more difficult however, argument, constitutional. This tion of whether Section intrudes independent overlooks the limitations the upon his power. exercise of that In re- legislation even imposes Constitution solving questions, both we find ourselves in Congress’s within powers. enumerated relatively uncharted waters with few fixed is, That a statute that would Congress navigate. stars which to authority may otherwise have to enact still up against run independent some restric- A. power.

tion its For example, Com- merce Clause to Congress reg- authorizes I have little to add to the court’s thor- communications, ulate interstate but a ough discussion of whether the Constitu- may communications statute nevertheless tion endows the President with exclusive See, run afoul of the First Amendment. recognize foreign sovereigns. to As ACLU, 844, e.g., Reno v. 521 117 U.S. details, the court there is scant constitu- 2329, (1997) (hold- S.Ct. 138 L.Ed.2d 874 tional text to us guide contempo- and little ing that anti-indecency provisions of the raneous evidence of the Framers’ intent. Decency Communications Act violated the Moreover, See Court’s atOp. 205-07. al- Amendment). First though thoroughly the court recounts the Congress The fact that has affirmative precedents historical each side marshals authority regulate passports to thus does support at position, see id. question not resolve the of whether Sec- the most striking thing retelling about this 214(d) comports separation with the is what is from absent it: situation like does, however, powers. It help frame the one, this where the President and Con- quite question narrow constitutional we gress disagree about a recognition ques- Congress must answer. authority has to sure, throughout tion. To be history our regulate only we passports; need decide Congress acquiesced has often a Presi- particular whether of that exercise recognition a foreign dent’s unilateral authority, 214(d), infringes Section on the (detail- See, sovereign. e.g., id. at 207-08 recognition power. Executive’s George President Washington’s recog- post-revolutionary gov- nition of France’s

II. ernment). occasions, on a And few outset, IAs noted at the voluntarily in order to President has coordinated with demonstrate that Section Congress regarding recognition is uncon- decision. 222 tum, au-

See, (pointing generally to Presi- must treated as e.g., id. thoritative,” Oakar, request that v. dent Lincoln’s Con- Abraham (internal (D.C.Cir.1997) F.3d gress recognition Liberia endorse (nor Haiti). omitted), com- party any quotation But neither marks we are amici) history recog- pelled “[political time in our conclude that points Ex- exclusively have nition a function of the when President ecutive,” Sabbatino, recognition. an issue of 376 U.S. clashed over Indeed, all three of our col- S.Ct. that, unsurprising all Given leagues question considered this who had no occasion to has Supreme Court time agreed. last this case was before us definitively political branches’ resolve State, v. Secretary power. competing claims (D.C.Cir.2009), 1227, 1231 F.3d vacated True, consistently and clear- Court Clinton, by Zivotofsky and remanded v. ly courts have no stated that — -, U.S. 132 S.Ct. See, second-guess decisions. (Ed- (2012); L.Ed.2d id. at Co., e.g., v. Insurance Williams Suffolk wards, J., concurring). hold To other- 415, 420, 13 Pet. 10 L.Ed. 226 U.S. wise, disregard we would have (1839). doing, And in so has often views, only their considered but also recognition power inhering ferred Supreme repeated Court’s statements See, exclusively e.g., in the Executive. effect, e.g., same Goldwater Sabbatino, de Banco Nacional Cuba Carter, 410, 84 11 L.Ed.2d 804 (1979) (Brennan, J., 62 L.Ed.2d dis- (“Political exclusively recognition is (“Our senting) firmly cases establish Executive.”). said, That function of the Constitution commits occasionally suggested has also Court recognize, alone the and with- Congress and the President share from, recognition foreign regimes.” draw See, power. e.g. Jones v. United Sabbatino, (citing 410, at 376 U.S. 84 States, 212, 80, 11 137 S.Ct. 34 U.S. Carr, 923; S.Ct. Baker v. 369 U.S. (“Who is sovereign L.Ed. 691 the (1962); 82 7 L.Ed.2d 663 S.Ct. territory, judicial, ... of a is not but a Pink, 315 228- U.S. political, the determination of question, (1942))), 62 L.Ed. 796 S.Ct. 86 by legislative and de- the executive largely well as centuries of consistent his- partments conclusively ... binds the practice, Op. torical 207- Court’s ”). Significantly pur- for our judges.... Moreover, in light of the President’s many poses, the has made more Court “primary responsibility for the conduct falling category statements in the former affairs,” our New York Times Co. again, than in the latter. But still and the States, v. United squarely pre- has never resolved the Court (1971), S.Ct. L.Ed.2d locat- today. question cise we face recognition power the in the Execu- say question yet To to be to our con- tive branch conforms broader answered, however, conclusively is not to design. stitutional say—at perspective from the of this least “inferior” court—that the answer is un- B. told, given great All weight clear. then, legal question, The critical is whether precedent given

historical and 214(d) “carefully language infringes in fact on the considered Section Court, technically authority recog- if dic- President’s exclusive Supreme even foreign sovereigns. Secretary’s power nize authority includes to determine ter- See, position straightforward: By preventing Baker, ritorial boundaries. e.g., place identifying (“[T]he holders from judiciary birth that with the President’s conflicts ordinarily follows executive as to which determinations, recognition Secretary’s sovereignty nation has over disputed terri- policy implicates recognition. place-of-birth Pink, tory----”); 315 U.S. at This is all more evident in the context (holding S.Ct. 552 it, Judge put of Jerusalem. As Edwards power is “not limited to a determination of Secretary’s regarding “The rules the des- government to be recognized,” but ignation of on ... passports Jerusalem rather power includes the to take actions plainly implement the Executive’s determi- without which “the recognize nation not as part Jerusalem thwarted”); might Williams, 38 U.S. at any regime.” sovereign Zivotofsky, (“[W]hen the executive branch of the (Edwards, J., concurring). F.3d at 1241-42 in regard fact assume[s] Secretary’s Given that place-of-birth sovereignty country, island policy implicates recognition power on judicial conclusive depart- 214(d) given displaces Section ment.]”). reasons, policy, Secretary Zivotofsky’s argument, power- narrower unconstitutionally statute intrudes fully developed in amicus briefs submitted recognition power. President’s members of Anti- differently. things sees His League, Defamation stronger. much first and broadest contention is that Letting Jerusalem-born individuals choose recognition power, President’s even if ex- designate place “Israel” as their clusive, does not include the to de- birth, contends, he neither effects a recog- territory termine certain belongs whether nition of sovereignty Israel’s over Jerusa- particular foreign recogni- to a state. The lem nor otherwise interferes give power may authori- recognition power. As he em- ty to recognize decide whether to nothing in phasizes, Section entity sovereign, as a he but argues, Secretary quires list “Israel” as the includes no to determine that all birth for Jerusalem-born U.S. sovereign state’s territorial boundaries. Rather, citizens. it merely enables those This line of short argument falls well of its citizens support Jerusalem-born who Isra- mark. power recognize sovereign The to a designate place el to choose to their necessary state’s territorial boundaries is a consistently birth with that view. Aside corollary recognize to a sov- Secretary’s say-so, from Zivotofsky the ereign instance, place. the first For on no goes argue, simply to there is reason recognizing sovereign’s an established for- conclude the limited that statute’s inter- new, colony mer a independent sover- way Secretary ference with the the rec- eign straightforward seems a exercise of passport place ords a holder’s of birth Zivotofsky even what would concede to be implicates recognition Nor power. the recognition recogni- the But power. such there reason that boundary implementing a to believe necessarily entails deter- 214(d) affect colony, formally adversely Section would for- recog- mination—the once eign policy. passports part sovereign’s territory, nized as of one Because affected “Jerusalem, effectively recognized belonging to would list “Israel”—not Isra- Indeed, precedent binding poli- another. on el”—observers would discern no U.S. confirms recognition this court that cy identifying part Jerusalem as Israel. iden- Secretary accommodates That the difficult is this case makes What they are tity to the extent preferences theAs Secre- Zivotofsky partly right. policy does lit- recognition consistent Br. concedes, Secretary’s at 53 n. tary position tle undermine his place-of-birth primary purpose recog- place-of-birth implicates in fact field identi- field is enable Secretary consistently The has nition. individuals—e.g., distin- particular fy line, permitting individual walked a careful another born Jane Doe from guishing one ensuring possible where while still choice fact very day. And the same foreign policy. Because consistency with to choose to Secretary individuals permits Secretary’s is about both identi- policy instead of city area birth list recognition, Congress could fication suggest country does tend of birth place- probably pass laws about some per- is also about place-of-birth with the field that do interfere of-birth identity. sonal instance, Con- power. For recognition Secretary’s policy is about That things, gress might be to do little like able identity, personal howev- identification be listed in place birth require er, it does not also not mean that does might It even be able to particular font. fact, clearly recognition. implicate place- like eliminate the bigger things, do years, Secretary does. Over Although doing together. of-birth field all incredibly point: on this been consistent so inhibit identification of would circumstances—including circumstances no holders, not seem to interfere would issue—can an indi- beyond the Jerusalem recognition power. with the President’s opt designation a place-of-birth vidual 214(d), Congress in enacting But Section inconsistent with United on power. intrude did 7 FAM For ex- policy. See 1383.5-1383.7. Secretary’s abrogate the statute seeks to never ample, because place- practice precluding longstanding recognized the Soviet Union’s annexation inconsistent designations that are of-birth Estonia, Latvia, Lithuania, Sec- According recognition policy. with U.S. entry retary authorize “did Secretary, would also Section place as a or the ‘Soviet Union’ ‘U.S.S.R.’ consequences for the President’s have born in these areas. people of birth” for neutrality ques- carefully guarded Zivotofsky D. Appx. FAM identifies Although tion of Jerusalem. I policy, from nor am no deviation judgment challenges The Taiwan aware one. directive foreign policy consequences would adverse Zivotofsky repeatedly points only 214(d), implementing Section he flow from Secretary’s consistency. underscores the why no reason the President’s exer- offers recognizes Tai- Because the United States recog- cise of his constitutional China, permitting as an area within wan hinge should on a foreign sovereigns nize to list as their individuals “Taiwan” showing consequences. Even adverse Secretary’s gen- comports of birth with the importantly, courts are not more Moreover, cannot policy. possibly second-guessing eral one the Presi- business of applica- Manual’s Foreign policy judg- read Affairs reasonable dent’s any- ments, policy cf., e.g., Chicago of that & Southern Air tion Jerusalem Lines, attempt Corp., maintain thing but an consis- Inc. S.S. Waterman L.Ed. place-of-birth S.Ct. tency field between (1948), this reasonable. recognize perfectly no one is decision to the President’s sense, is, all, in a “[a] sovereign’s city. After claim that 214(d) which issuing Congress letter of introduction in intended Section to alter sovereign Haig recognition vouches for the bearer.” policy respect to Jerusa- Agee, lem, and the President sees it the same (1981). 69 L.Ed.2d And it is certainly way. Our decision makes us the third and insists, plausible, Secretary as the that final branch to reach this conclusion. And passports listing American-issued “Israel” the recognition power because belongs ex- place as the clusively President, birth Jerusalem-born that means Sec- 214(d) citizens decades of disrupt could consid- is unconstitutional.

ered neutrality question. on the Jerusalem III. had—only If this all were we the Secre- Although foregoing analysis largely tary’s reasonable judgment Section case, resolves this is there one loose I end 214(d) infringes on the Executive’s exclu- think merits Zivotofsky’s mention: argu- recognition power—it might sive well be Secretary’s ment place-of-birth all, enough. Supreme After Court has policy against supporters discriminates held that the recognition “includes formulation, Israel. In its most effective I policy determine which is point take the as follows: Under the Sec- govern question recognition.” retary’s policy, supporters of Palestine Pink, 229, 62 315 U.S. at S.Ct. 552. But born in Tel Aviv can passports use their out, there is more. As it turns this is not a signal rejection their of Israel’s claim to case which we choose must between the sovereignty by choosing list “Tel Aviv” of a characterization statute as instead of “Israel” as their of birth. implicating recognition Congress’s By contrast, supporters of Israel born in Indeed, contrary view. Congress was Jerusalem cannot use their passports to quite candid doing about what was when signal their view that part Jerusalem is 214(d). it enacted Section That subsection Thus, Israel. the policy discriminates part a provision titled “United States against supporters, Israel and Section policy with respect to Jerusalem as the 214(d) remedies that discrimination. capital of Foreign Israel.” Relations Au- Act, thorization Fiscal Year Pub.L. To the extent is an independent this (2002). No. Stat. Secretary’s policy claim that is dis- The other sections under heading are criminatory, I agree it waived. See passports, they about are recog- about Op. Court’s at 220. To the extent nizing of—indeed, Jerusalem as part argument Section is constitu- the capital of—Israel. See id. And the tional because it remedies unlawful dis- legislative history doubly makes clear that crimination, argument such cannot over- goal. Congress’s was See H.R. come the power problem for Rep. Conf. No. (Sept. passport power the same reason the argu- 2002) (explaining that Section 214 “con- ment cannot: legislation Congress would tains four provisions recog- related otherwise have to enact may still nition of capital” Jerusalem as Israel’s run afoul of an independent constitutional added)); (emphasis also Op. Court’s congressional restraint on action. 217-18 (highlighting similar statements I important nonetheless think it to note Congress).

various members of discriminatory. is not In- end,

So in separation-of- deed, 214(d), is a unlike permits Section powers dispute in which both supporters branches Jerusalem-born Israel to list involved in actually the struggle agree. “Israel” as their birth but allows Pal- option for Jerusalem-born

no parallel NADER, Ralph Appellant Department’s State supporters, estine a fa- establishes Foreign Affairs Manual individu- permits cially neutral in lieu city or area of birth

als list then- COMMISSION, FEDERAL ELECTION country of birth. 7 FAM of their Appellee. 1383.6(a). 1383.5-2; The policy 7 FAM No. 12-5134. just in the context universally—not applies treats Israel and Pales- of Jerusalem—and Appeals, Court of identically. Jerusalem- supporters tine District of Circuit. Columbia Americans, of Is- supporters whether born Palestine, supporters may rael or Jan. Argued political to make a use their passports permitting that is because statement. And Aug. Decided to list individual “Israel” Jerusalem-born the Presi- contradict or “Palestine” would recognize entity’s neither

dent’s decision

sovereignty over Jerusalem.

True, with his emphasizes born within example,

Tel Aviv individuals recognized States has

territory can choose either belonging to Israel in- place of birth or

list “Israel” as their area of birth. city to list or Israel

stead “Israel,” may and Palestine

supporters list something may spe- list more

supporters although political But nature of

cific. may be clearer insomuch latter choice

as marks from the default a deviation rule,

country-of-birth that is unintended Indeed,

consequence policy. of a neutral recognize the the United States to

were sovereign Bank as state Pales-

West

tine, true of Israel the same would be is, That Pales- born therein.

supporters “Palestine,” and could list supporters

tine supporters could make more

Israel city

obviously political choice to list their only It is because the area birth. recognized any Pal-

United States has currently ex- territory

estinian that there Zivotofsky’s analogy no clear Tel

ists

Aviv scenario.

Case Details

Case Name: Zivotofsky Ex Rel. Ari Z. v. Secretary of State

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 23, 2013

Citation: 725 F.3d 197

Docket Number: 07-5347

Court Abbreviation: D.C. Cir.