Zivotofsky and the Separation of Powers

Zivotofsky v Kerry concerns disputed borders, territorial and constitutional. Is Jerusalem part of Israel? May Congress force the President to issue passports that are premised on the conviction that Jerusalem is within Israel? The Court disclaimed any desire to opine on the first question.

On the second, it declared that the Constitution grants the President an exclusive power to recognize other nations, governments, and their territorial claims. Based on its conclusion that the presidency had exclusive authority over recognition, the Court held that Congress could not command the President to issue documents that intimated that Jerusalem was part of Israel. The Court’s opinion drew sharp dissents from the late Justice Antonin Scalia and Chief Justice John Roberts and a somewhat critical opinion from Justice Clarence Thomas. While the Court will have no trouble distinguishing or limiting Zivotofsky, the case will likely reverberate for years because it touches on numerous aspects of foreign relations law and the separation of powers.

The case generated a series of insightful opinions, each of which adds to our understanding of the Constitution’s allocation of foreign affairs powers. Lawyers, judges, and scholars will dissect these opinions, extracting arguments and drawing analogies. Perhaps more importantly, the Court’s opinion has many elements favoring presidential power, even as it takes pains to reassure that Congress retains considerable authority over foreign affairs. Finally, the opinion marks the first instance in which the Court struck down a federal law on the grounds that it impermissibly infringes upon the President’s foreign affairs powers.

Zivotofsky will stand alongside United States v Klein, Myers v United States, and I.N.S. v Chadhas a case in which the Court sided with the presidency over Congress.