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Floor Speech on Zivotofsky v. Kerry

June 11, 2015


Earlier this week, the Supreme Court wrongly decided the case of Zivotofsky v. Kerry, an unprecedented decision that impairs Congress's role in foreign policy and is an affront to our close ally, Israel.

The Zivotofsky case concerned the Executive Branch's refusal to implement a 2002 law passed by Congress and signed by the President.  The law required State Department officials to offer U.S. persons born in Jerusalem the option of listing "Israel" as their location of birth on passports and other consular documents.  The State Department's practice had been to list the place of birth only as "Jerusalem," reflecting the President's policy of not recognizing any national sovereign authority over the holy city.

Despite the fact that a president signed the statute into law, the Executive Branch has fought tooth and nail for 13 years to free itself from what it viewed as the heavy burden of writing the word "Israel" on one line in a tiny number of U.S. passports. And it argued its case all the way to the Supreme Court. 

In litigating the Zivotofsky case, it is no surprise that the President outlined a maximalist vision for his power to steer the nation's foreign policy, leaving little room for the People's representatives in Congress.  But it was a surprise that the Supreme Court acquiesced to the President's position.  Before this past Monday, in the entire 225-year history of our nation, the Supreme Court had never sided with a President's blatant refusal to comply with a duly passed statute affecting the conduct of foreign affairs.

This is a remarkable and disturbing break with precedent, one made through a poorly reasoned judicial opinion.   The Court announced that the President possesses an exclusive constitutional power to "recognize" other nations and that this power crowds out any attempt by Congress to legislate in the area, including on how locations of birth are characterized on passports.  

But this conclusion suffers from a number of problems.  The Court is supposed to only find a preclusive Executive power where such a power is clearly committed to the Executive Branch in our Constitution.  But nowhere in the text of the Constitution is there a reference to a "recognition" power, let alone an allocation of such a power to the President alone.  The Court acknowledges this in its opinion.  So it instead finds the recognition power embedded in the Constitutional provision stating that the president "shall receive Ambassadors and other public Ministers."  But as Alexander Hamilton wrote in Federalist 69, that provision was understood to be a matter of "dignity," not "authority," that would have no "consequence for the administration of the government."  In other words, that provision does not imbue the president with a power - it imposes an obligation on him, and a ceremonial one at that. 

The provision furthermore appears in the section of the Constitution that imposes an array of obligations on the President, not the section investing him with powers.   And, ironically, it appears right before the provision that obligates the President to "take Care that the Laws be faithfully executed."  I would assume the Framers believed that "the Laws" would include ones regarding passports.

I want to be very clear on this:  the recognition power the Court identified is not enumerated in the text of the Constitution, and no one at the time of the founding believed it to be included in the Constitution.  At the same time, the Constitution explicitly entrusts Congress with grave international responsibilities, including the power to declare war and raise and support armies.   These powers place the legislative branch in a central role in the conduct of our nation's foreign policy. 

The Supreme Court therefore stood on remarkably shaky ground when it announced a supposedly exclusive presidential power, one that can nullify contrary congressional enactments.   And it unwisely - and indeterminately - expanded the President's unchecked discretion in the conduct of foreign affairs. 

That is a potentially dangerous opening, particularly with the current president.  President Obama has shown an unhealthy penchant both for ignoring the law and for granting unilateral concessions to longtime enemies abroad.  That tendency cannot and must not go unchecked.


Beyond the constitutional infirmities of the Court's opinion, I want to comment on the broader issue in the background of the Zivotofsky case.

The Executive Branch based its refusal to comply with the passport law on the fear that identifying a person born in Jerusalem as having been born in Israel would upend the Peace Process.  The State Department declared that compliance with the law "would critically compromise" U.S. efforts to forge an agreement between Israel and the Palestinians, "significantly harm" our foreign policy, and "cause irreversible damage" to the United States's role as an honest broker.

This is embarrassing hyperbole.  And it's also complete nonsense.

The role of an honest broker in negotiations is just that: to be honest.  So let's be honest.  Israel's seat of government is located in Jerusalem.  Israel administers the entire city.  Over 500,000 Israelis live and work in Jerusalem.  The reality is that Jerusalem is the capital of Israel, and any final agreement - whether it includes some sort of sharing arrangement or not - will not change that.  The United States and the world should not deny that reality.  It should accept it, and then begin the hard work of helping the parties forge a lasting peace.

The role of an honest broker is to ground negotiations in truth.  It is to quell unreasonable reactions and expectations.  It is to strip away issues that are peripheral and focus the parties on those that are essential. 

That the president believes the designation of Jerusalem as a part of Israel on a mere passport could throw the entire prospect for peace into a tailspin says much about his confidence in his abilities as a mediator.  And it perhaps also says much about the current political climate in the Middle East, where deepened divisions would render renewed talks at this point unproductive.

Ultimately, a resolution of the Israel-Palestinian dispute should be reached.  But progress toward that resolution will not move forward if the Palestinians remain unreasonably sensitive to peripheral issues, such as passports.  It will not move forward if the President is afraid to speak the truth.  And it will not move forward if the United States Congress is restrained from adding a dose of reality to the conduct of our foreign affairs.