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July 23, 2013
  Zivotofsky v. Secretary of State
Headline: D.C. Circuit finds Section 214(d) of the Foreign Relations Authorization Act an unconstitutional infringement on the President's exclusive recognition power

Area of Law: Constitutional law; Separation of Powers

Issue(s) Presented: Whether section 214(d) of the Foreign Relations Authorization Act, which requires the Secretary of the United States Department of State ("the Secretary") to record "Israel" as the birthplace on the passport of a U.S. citizen born in Jerusalem upon request, impermissibly intrudes upon the President's authority under the Constitution to recognize foreign sovereigns.

Brief Summary: Since the mid-twentieth century, U.S. presidents have taken a position of neutrality in the ongoing dispute between the Israeli and Palestinian people over Jerusalem. Section 214(d) of the Foreign Relations Authorization Act, enacted in 2002, requires the Secretary to record Israel as the birthplace for citizens born in Jerusalem upon request. The parents of Menachem Zivotofsky, a U.S. citizen born in 2002 in Jerusalem, applied for a U.S. passport, listing his birthplace as Jerusalem, Israel. The State Department issued a passport to Zivotofsky listing only Jerusalem as his birthplace. Zivotofsky brought suit against the Secretary seeking declaratory relief and a permanent injunction ordering the Secretary to issue him a passport listing "Jerusalem, Israel" as his birthplace. The United States District Court for the District of Columbia dismissed the case, concluding that Zivotofsky did not have Article III standing and, alternatively, that the case presented a non-justiciable political question. The D.C. Circuit reversed and remanded on the standing point without reaching the political question issue. Again, the district court determined that the case presented a non-justiciable political question, and the D.C. Circuit affirmed on appeal. Last term, the United States Supreme Court vacated and remanded. The Court found that the case did not ask courts to supplant the foreign policy judgments of political branches but instead presented a straightforward legal question: whether the statute represented an unconstitutional encroachment on an exclusive executive power.

On remand, the D.C. Circuit first asked whether the power to recognize foreign sovereigns belongs to the President alone; and finding that it did, the court asked whether section 214(d) interfered with the President's exclusive exercise of that power. The unanimous court determined, although neither the constitutional text nor contemporaneous indications of the framers' intent conclusively resolved the first question, longstanding post-ratification practice and Supreme Court interpretation, consistent with the Constitution's broader design, supported the conclusion that the President's recognition power is inherently exclusive. Turning to the second question, the court rejected Zivotofsky's argument that Section 214(d) represents a valid exercise of congressional "passport power." The court noted that, by its own terms, Section 214(d) seeks to articulate U.S. policy that Jerusalem is the capital of Israel. The court found that the provision compromised the executive's policy of neutrality and, as such, represented an unconstitutional incursion on the exclusive power of the executive branch to recognize foreign sovereigns.

For the full text of this opinion, please visithttp://www.cadc.uscourts.gov/i...le/07-5347-1447974.pdf

Significance (if any): This case presents a novel separation of powers question.

Panel (if known):
Henderson, Rogers, Tatel

Argument Date (if known): March 19, 2013

Date of Issued Opinion: July 23, 2013

Docket Number: No. 07-5347

Decided:
July 23, 2013

Case Alert Author:
Tiffany Kelley

Counsel (if known):
Nathan Lewin and Alyza D. Lewin for appellant. Dana Kaersvang, Stuart F. Delery, Ronald C. Machen, Jr., and Harold Hongju Koh for appellee.

Author of Opinion:
Henderson

Case Alert Circuit Supervisor:
Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/23/2013 12:51 PM     DC Circuit  

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