Zivotofsky v. Kerry

This case presented a direct clash between a statute that was properly enacted by Congress and a direction by the President of the United States to his Secretary of State to disobey that statute because the President believes that it unconstitutionally interferes with his ability to conduct the foreign affairs of the United States as he sees fit. The statute allowed a U.S. citizen born in Jerusalem to choose to have his or her U.S. passport state the place of birth as either Israel or Jerusalem; the President directed the Department of State to use Jerusalem only. The DC Circuit Court of Appeals held that the Department of State could disregard the statute on the basis that implied powers of the President with respect to foreign affairs allow him to do so if he disagrees with Congress’s judgment.

While taking no position on the question underlying the dispute between Congress and the President, Public Citizen filed an amicus brief addressing the separation of powers issue. The brief argued that the conduct of matters touching on foreign affairs is a shared responsibility of the President and Congress. As a general rule, when Congress acts in an area of shared authority by passing a bill that the President signs into law or that is repassed over his veto, the President must obey that law. To be sure, congressional action could invade the province of the President in the actual conduct of foreign affairs in some instances by, for example, directly assuming the role of negotiating a treaty or by strictly confining the President’s options so that, in effect, he would be unable to negotiate at all. But this case, we argued, is not such an instance.

In a 6-3 decision, the Supreme Court held that because the power to recognize foreign states resides in the Executive Branch, the statute infringes on the Executive’s consistent decision to withhold recognition. The principal dissent disagreed on the basis that the statute has nothing to do with recognition.