Passport Proclivity

A United States passport is an American citizen's ticket to the world, and is one of the most important documents and individual can possess.  U.S. passports are one of only a handful of documents that can be used as an irrefutable proof of United States citizenship, but most are used primarily to travel abroad. When I saw a headline today about a U.S. Court of Appeals for the District of Columbia ruling pertaining to U.S. passports I was curious, mostly because I couldn't think of any major legal issue that would be relevant.  However, the Court of Appeals ruling today was interesting and highlights the important constitutional distinction between the three branches of our government.

The Facts:  The facts of the case the Court of Appeals was considering pertains to a 2002 law passed by Congress which required the State Department to list "Israel" as the birthplace for Jerusalem-born U.S. citizens.  This law was passed despite the long standing position of the executive branch of neutrality toward the sovereignty of the city of Jerusalem.  The United States has recognized Israel since it's inception in 1948, but no executive branch has ever veered from the neutrality stance on Jerusalem because both Israel and Palestine claim the city as a political and/or spiritual capital.

However, the real issue under consideration was the fact that Congress passed a law with the sole purpose of forcing the State Department to recognize Israel's singular sovereignty over Jerusalem.  Instead of just listing "Jerusalem" as the place of birth, the law required passports to be issued as "Jerusalem, Israel" and thereby dictating U.S. foreign policy.  The case centers around the Zivotofsky family, whose son was born in Jerusalem.  When Mrs. Zivotofsky applied to have her son's passport list his place of birth as "Jerusalem, Israel" immediately after Congress passed their 2002 law, the consulate only listed Jerusalem.  This sparked litigation and the constitutional conflict around whether the President and executive branch (which the State Department is under) has the sole power to recognize foreign nations and dictate U.S. foreign policy. 

The Ruling:  The U.S. Court of Appeals for the District of Columbia unanimously found the 2002 law to be unconstitutional and a direct violation of the enumerated powers to the executive branch.  Judge Henderson wrote:

Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality on what nation or government, if any, is sovereign over Jerusalem.

Henderson was joined by two other judges, making it a unanimous ruling from appointees of Republican and Democratic presidents.  Presidents since Harry Truman have strictly adhered to the notion of neutrality for Jerusalem in order to avoid damaging prospects for a potential peace deal.  However, the real issue before the court was the effort by the legislative branch to dictate U.S. foreign policy, which is almost exclusively a privilege of the executive branch.  The court went on to note that "While the president's foreign affairs powers are not precisely defined, the courts have long recognized the president's presumptive dominance in matters abroad".  The issue of legislative versus executive authority in dictating foreign policy has always been a constitutional issue throughout our country's history, but from the Supreme Court down, the judiciary have almost always ruled exclusively in favor of the executive branch.  If you have any thoughts please feel free to share!