Supreme Court Action: Recognition of A Foreign Sovereign and Executive Powers, and a Little Legal Research Lesson

The Supreme Court issued one opinion this morning.  That case, Zivotosky v. Kerry (13-628), resolves a long standing court battle on whether a U.S. passport issued to a citizen born in Jerusalem can state the country of birth as Israel.  The current administration, as well as every previous administration since the United States recognition of Israel in 1948, has declared that Jerusalem is not under the control of any one country.  The Foreign Affairs Manual requires that passports recording of birth location be consistent with administration policy.

Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003 in 2002.  Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.”  Congress explicitly authorized passports to state the country of birth as Israel for those U.S. citizens born in Jerusalem.   Menachem Binyamin Zivotofsky was born in Jerusalem in 2002 and his parents requested his country of birth be listed as Jerusalem.  Consular officials declined the request, setting up the present suit.

There is a long history of this case proceeding up and down the federal court system.  The Supreme Court issued a procedural opinion in 2012 (Zivotofsky v. Clinton) ruling essentially that the federal courts could decide the question.  Three years later the Court rules on the substantive issue, stating that the Act is unconstitutional.  The rationale for this is an analysis of constitutional language,  historical practice, and past precedent touching on presidential power to conduct foreign relations.  The Court acknowledges that Congress can pass legislation that can regulate passports in some circumstances.  Congress, cannot, however, pass legislation that affects the power of the President to recognize (or not) foreign sovereigns.  This Act falls into that latter category.

What struck me most about the opinion is the number of historical secondary sources cited by the Court.  It’s almost a lesson in legal research.  Some of the sources include:

  • Restatement (Third) of Foreign Relations Law of the United States §203, Comment a, p. 84 (1986)
  •  2 M. Whiteman, Digest of International Law §1, p. 1 (1963)
  • 1 J. Moore, Digest of International Law §27, p. 73 (1906)
  • I. Brownlie, Principles of Public International Law 93 (7th ed. 2008) (Brownlie)
  • The Federalist No. 69, p. 420 (C. Rossiter ed. 1961)
  • E. de Vattel, The Law of Nations §78, p. 461 (1758) (J. Chitty ed. 1853)
  • 2 C. van Bynkershoek, On Questions of Public Law 156–157 (1737) (T. Frank ed. 1930)
  •  2 H. Grotius, On the Law of War and Peace 440–441 (1625) (F. Kelsey ed. 1925)
  • 3 J. Story, Commentaries on the Constitution of the United States §1560, p. 416 (1833)

There are more.  I point this out as someone who has taught Advanced Legal Research, emphasizing that researching international and constitutional law issues requires attention to historical literature.  There is more to interpretation than the latest hornbooks.    The Court’s opinion today validates that.  The Clerks did a marvelous job in working on this case.  I’ll leave the impact of today’s decision to the commentators in the new.

Justice Kennedy delivered the opinion of the Court and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Breyer filed a concurring opinion.  Justice Thomas filed an opinion concurring in the judgment and dissenting in part.  That makes it 6-3.  Chief Justice Roberts filed a dissenting opinion and was joined by Justice Alito.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Alito.

Mark

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