At first glance, yesterday’s decision in Zivotofsky v. Kerry might seem destined to end up as but a footnote in most constitutional-law books. It decides only whether the president or Congress controls the content of U.S. passports — now Nancy Pelosi can no longer demand that the Golden Gate Bridge appear on the visa pages of your next one. But because Zivotofsky involves the treatment of Jerusalem, it adds to the president’s foreign-affairs arsenal and could affect the struggle over U.S. Middle East policy, such as an Iranian nuclear deal.
Zivotofsky upholds the executive’s right to control passports. According to the Court’s decision, the State Department, rather than Congress, decides whether to record the birthplace of a U.S. citizen born in Jerusalem as “Jerusalem,” rather than “Israel.” All of the justices agree that the president holds a monopoly on the recognition of foreign governments, which stems from his exclusive constitutional authority to “receive Ambassadors” and has existed since President Washington’s 1793 proclamation of neutrality during the French Revolution. Congress, on the other hand, has the authority to control immigration, the borders, and international travel. Justice Kennedy, who wrote the majority opinion on behalf of Justices Ginsburg, Breyer, Kagan, and Sotomayor, used an ill-conceived and undefined balancing test to conclude that Congress could not use these powers to contradict the president’s position on Israel’s territorial boundaries. A law using passports to contradict the president’s decision to recognize Israel “would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”