The Constitution, Passports, and Sovereignty

Rick Richman
Commentary/Contentions
10 May '11

Let me add a footnote to the coverage by Seth Lipsky (see here and here) and others of the Zivotofsky case, in which the Supreme Court will decide whether the Executive Branch must comply with a 2002 statute directing the Secretary of State to put “Jerusalem, Israel” on the passports of citizens born there who request the country be added. The State Department’s long-standing policy puts only “Jerusalem” on such passports.

The Obama administration, like the Bush administration before it, refused to comply with the law on grounds it infringes on the President’s exclusive authority under the Constitution to recognize foreign governments. The administration argues the law would require the President to change the U.S. policy of neutrality on the issue of sovereignty over Jerusalem.

The lower court noted that one of Zivotofsky’s arguments was that passport designations have a “negligible impact on American foreign policy.” The administration responded by pointing to the international reaction to the law in 2002:  

According to the State Department, “Palestinians from across the political spectrum strongly condemned the Jerusalem provisions of the [Act], interpreting those provisions as a reversal of longstanding U.S. policy that Jerusalem’s status should be determined by Israel and the Palestinians in final status talks.”  

In September, the Palestinians are planning to ask the UN to award them sovereignty over the historic part of Jerusalem. Given the longstanding U.S. policy that Jerusalem’s status should be determined by Israel and the Palestinians in final status talks, the administration will presumably oppose the Palestinian effort at least as resolutely as it has opposed Menachem Zivotofsky’s desire to put “Jerusalem, Israel” on his passport.

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