Zivotofsky v. Kerry

135 S.Ct. 2076 (2015)

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Nature of the Case

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Facts

Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy. The Executive Branch has maintained that “‘the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned. The President’s position on Jerusalem is reflected in State Department policy regarding passports and consular reports of birth abroad. The State Department’s Foreign Affairs Manual instructs its employees, in general, to record the place of birth on a passport as the “country [having] present sovereignty over the actual area of birth.” If a citizen objects to the country listed as sovereign by the State Department, he or she may list the city or town of birth rather than the country. Because the United States does not recognize any country as having sovereignty over Jerusalem, the FAM instructs employees to record the place of birth for citizens born there as “Jerusalem.” Congress passed an Act wherein section 214(d), addresses passports. That subsection seeks to override the FAM by allowing citizens born in Jerusalem to list their place of birth as “Israel.” In 2002, P was born to United States citizens living in Jerusalem. P’s mother visited the American Embassy in Tel Aviv to request both a passport and a consular report of birth abroad for her son. She asked that his place of birth be listed as “‘Jerusalem, Israel.’” The Embassy clerks explained that, pursuant to State Department policy, the passport would list only “Jerusalem.” P objected and brought suit in the United States District Court for the District of Columbia, seeking to enforce §214(d). P claims the right to have “Israel” recorded as his place of birth in his passport. The District Court dismissed his case, reasoning that it presented a nonjusticiable political question and that P lacked standing. The Court of Appeals for the District of Columbia Circuit reversed on the standing issue but affirmed the District Court’s political question determination. The Supreme Court granted certiorari, vacated the judgment, and remanded the case. On remand, the Court of Appeals held the statute unconstitutional. It determined that “the President exclusively holds the power to determine whether to recognize a foreign sovereign,” and that “section 214(d) directly contradicts a carefully considered exercise of the Executive branch’s recognition power.” The Court again granted certiorari.