United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2013 Decided July 23, 2013

No. 07-5347

MENACHEM BINYAMIN ZIVOTOFSKY, BY HIS PARENTS AND GUARDIANS ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY,

APPELLANT

v.

SECRETARY OF STATE,

APPELLEE

Appeal from the United States District Court for the District of Columbia (No. 03cv01921)

Nathan Lewin argued the cause for the appellant. Alyza D. Lewin was on brief.

Robert G. Kidwell was on brief for amici curiae Anti-Defamation League et al. in support of the appellant.

David I. Schoen was on brief for amicus curiae Zionist Organization of America in support of the appellant.

Paul Kujawsky was on brief for amicus curiae American Association of Jewish Lawyers and Jurists in support of the

appellant.

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Gregory E. Ostfeld, Elliot H. Scherker and Marc Stern were on brief for amicus curiae American Jewish Committee

in support of the appellant.

Theodore B. Olson was on brief for amici curiae Members of United States Senate et al. in support of the appellant.

Dana Kaersvang, Attorney, United States Department of Justice, argued the cause for the appellee. Stuart F. Delery,

Acting Assistant Attorney General, Ronald C. Machen, Jr., United States Attorney, and Harold Hongju Koh, Legal

Adviser, United States Department of State, were on brief.

Lewis Yelin and Douglas N. Letter, Attorneys, United States Department of Justice, and R. Craig Lawrence, Assistant United States Attorney, entered appearances.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge TATEL. KAREN LECRAFT HENDERSON, Circuit Judge:

Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, requires the Secretary (Secretary) of the United States Department of State (State Department) to record “Israel” as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian so requests. Id. § 214(d), 116 Stat. at 1366. The Secretary has not enforced the provision, believing that it impermissibly intrudes on the President’s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. We agree and therefore hold that section 214(d) is unconstitutional.

I. BACKGROUND

The status of the city of Jerusalem is one of the most contentious issues in recorded history. For more than two millennia, the city has been won and lost by a host of sovereigns. The controversy continues today as the state of Israel and the Palestinian people both claim sovereignty over the city. It is against this background that the dispute in this case arises.

Since the middle of the twentieth century, United States Presidents have taken a position of strict neutrality on the

issue of which sovereign controls Jerusalem. After Israel declared its independence in 1948, President Harry S Truman

promptly recognized it as a foreign sovereign. See Robert J. Reinstein, Recognition: A Case Study on the Original Understanding of Executive Power, 45 U. RICH. L. REV. 801, 804 (2011). Nevertheless, Presidents from Truman on have consistently declined to recognize Israel’s—or any country’s—sovereignty over Jerusalem. When Israel announced in 1948 that it intended to convene the inaugural meeting of its Parliament in a part of Jerusalem that it controlled, the United States declined to send a representative to attend the ceremonies; a State Department cable explained that “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli . . .sovereignty over parts of the Jerusalem area.” Shlomo Slonim, Jerusalem in America’s Foreign Policy, 1947-1997 at 123 (1998). During United Nations proceedings in 1967, the United States ambassador stated that the “continuing policy of the United States Government” was that “the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.” U.N. GAOR, 5th Emergency Sess., 1554th plen. mtg. ¶¶ 98-99, U.N. Doc.

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A/PV.1554 (July 14, 1967) (quotation marks omitted). As the Secretary summarized in response to interrogatories proposed

in this case:

Within the framework of this highly sensitive, and potentially volatile, mix of political, juridical, and religious considerations, U.S. Presidents have consistently endeavored to maintain a strict policy of not prejudging the Jerusalem status issue and thus not engaging in official actions that would recognize, or might be perceived as constituting recognition of, Jerusalem as either the capital city of Israel, or as a city located within the sovereign territory of Israel.

Def.’s Resps. to Pl.’s Interrogs. at 9, Zivotofsky ex rel. 

Zivotofsky v. Sec’y of State, No. 03-cv-1921 (D.D.C. June 5, 2006) (Joint Appendix (JA) 59). Therefore, “[t]he United States, like nearly all other countries, maintains its [Israeli] embassy in Tel Aviv,” id. at 8 (JA 58) (quotation marks omitted), not Jerusalem.

The State Department’s Foreign Affairs Manual (FAM) contains passport administration rules that reflect the policy of neutrality. The FAM first directs in detail how the applicant’s birthplace is to be stated on his passport. “As a general rule, enter the country of the applicant’s birth in the [place of birth field on the] passport.” 7 FAM 1383.1 (2002) (JA 111).1 If, however, the applicant was born “in territory disputed by another country, the city or area of birth may be written” in lieu of the country. 7 FAM 1383.5-2 (JA 113). Similarly, an applicant may request that his passport list the “city or town, rather than the country, of [his] birth.” 7 FAM 1383.6(a) (JA

1 All FAM provisions cited herein refer to the 2002 version, which was in effect during the relevant events.

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115). Regarding Jerusalem, the FAM sets forth a detailed policy:

For applicants born before May 14, 1948 in a place that was within the municipal borders of Jerusalem,

enter JERUSALEM as their place of birth. For persons born before May 14, 1948 in a location that was outside Jerusalem’s municipal limits and later was annexed by the city, enter either PALESTINE or the name of the location (area/city) as it was known prior to annexation. For persons born after May 14, 1948 in a location that was outside Jerusalem’s municipal limits and later was annexed by the city, it is acceptable to enter the name of the location (area/city) as it was known prior to annexation . . . .

7 FAM 1383.5-6 (JA 115). The FAM specifically provides that, for an applicant born in Jerusalem: “Do not write Israel or Jordan” on his passport and, further, that Israel “[d]oes not include Jerusalem . . . .” 7 FAM 1383 Ex. 1383.1 pt. II (JA 127). In sum, the State Department must record “Jerusalem”—not “Jerusalem, Israel” or “Israel”—as the place of birth on the passport for an applicant born in Jerusalem after 1948.

Recently, the Congress has attempted to alter the Executive branch’s consistent policy of neutrality. In 1995, it enacted the Jerusalem Embassy Act, which provides that “Jerusalem should be recognized as the capital of the State of Israel”; “the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999”; and “[n]ot more than 50 percent of the funds appropriated to the Department of State for fiscal year 1999 for ‘Acquisition and Maintenance of Buildings Abroad’ may be obligated until the Secretary of State determines and reports to Congress that the United States Embassy in Jerusalem has officially opened.”

Pub. L. No. 104-45, § 3(a)-(b), 109 Stat. 398, 399 (1995)

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(enacted into law without President’s signature). During the Congress’s consideration of the legislation, the Executive branch communicated with the Congress regarding its constitutionality. See 164 CONG. REC. S15,463 (daily ed. Oct.23, 1995). The United States Department of Justice (DOJ) via an assistant attorney general wrote to the White House Counsel: “It is well settled that the Constitution vests the President with the exclusive authority to conduct the Nation’s diplomatic relations with other States,” that “the President’s recognition power is exclusive” and that “[t]he proposed bill would severely impair the President’s constitutional authority to determine the form and manner of the Nation’s diplomatic relations.” Id. at S15,468. The DOJ official explained that his conclusions were “not novel”; for example, “[t]he Reagan Administration objected in 1984 to a bill to compel the relocation of the United States Embassy from Tel Aviv to Jerusalem, on the grounds that the decision was so closely connected with the President’s exclusive constitutional power [and] responsibility to recognize, and to conduct ongoing relations with, foreign governments as to, in our view, be beyond the proper scope of legislative action.” Id. at S15,469 (quotation marks omitted). Similarly, the then-Secretary expressed opposition to the legislation in a letter to the Senate Majority Leader. Id. The Secretary explained that “[t]here isno issue related to the Arab-Israeli negotiations that is more sensitive than Jerusalem” and “any effort by Congress tobring it to the forefront is ill-advised and potentially very damaging to the success of the peace process.” Id. He echoed the DOJ official’s doubts regarding the bill’s constitutionality.

Id. Ultimately, the Congress enacted the legislation with a waiver provision authorizing the President to suspend the funding restriction for six-month periods to “protect the national security interests of the United States.” Pub. L. No.104-45 § 7, 109 Stat. at 400.

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On September 30, 2002, President George W. Bush signed into law the Foreign Relations Authorization Act,Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350. Section 214(d) is the provision at issue and it provides:

(d) RECORD OF PLACE OF BIRTH AS ISRAEL

FOR PASSPORT PURPOSES.—For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

Id. § 214(d), 116 Stat. at 1366.2 When the President signed the Act, however, he also issued a signing statement, noting

2 Section 214 provides in full:

SEC. 214. UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.

(a) CONGRESSIONAL STATEMENT OF POLICY.—The Congress maintains its commitment to relocating the United States Embassy in Israel to Jerusalem and urges the President, pursuant to the Jerusalem Embassy Act of 1995 (Public Law 104–45; 109 Stat. 398), to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem.

(b) LIMITATION ON USE OF FUNDS FOR CONSULATE

IN JERUSALEM.—None of the funds authorized to be appropriated by this Act may be expended for the operation of a United States consulate or diplomatic facility in Jerusalem unless such consulate or diplomatic facility is under the supervision of the United States Ambassador to Israel.

(c) LIMITATION ON USE OF FUNDS FOR

PUBLICATIONS.—None of the funds authorized to be appropriated by this Act may be available for the publication of any official government document which lists countries and that “the Act contains a number of provisions that impermissibly interfere with the constitutional functions of the presidency in foreign affairs,” including section 214:

Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S.policy regarding Jerusalem has not changed.

Statement on Signing the Foreign Relations Authorization

Act, Fiscal Year 2003, 2002 WL 31161653 (Sept. 30, 2002).

Menachem Zivotofsky (Zivotofsky) is a United States citizen born in 2002 in Jerusalem to parents who are United States citizens. Compl. ¶¶ 2-5, Zivotofsky ex rel. Zivotofsky v. Sec’y of State, No. 03-cv-1921 (D.D.C. Sept. 16, 2003) (JA 8- 9); see also 8 U.S.C. § 1401(c) (making “national[ ] and citizen[ ] of the United States at birth . . . a person born their capital cities unless the publication identifies Jerusalem as the capital of Israel.

(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES.—For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

Pub. L. No. 107-228 § 214, 116 Stat. at 1365-66.

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outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person”).

In 2002, Zivotofsky’s mother applied for a United States passport for Zivotofsky, listing his birthplace as “Jerusalem, Israel.” Id. ¶ 8 (JA 9). The State Department, however, following its Jerusalem policy set forth in 7 FAM 1383.5-6, issued a passport in Zivotofsky’s name listing “Jerusalem” as his place of birth. Id.

On September 16, 2003, Zivotofsky, “by his parents and guardians, Ari Z. and Naomi Siegman Zivotofsky,” brought suit against the Secretary, seeking, inter alia, declaratory relief and a permanent injunction ordering the Secretary to issue him a passport listing “Jerusalem, Israel” as his place of birth. Id. at 3 (JA 10).3 The litigation has been up and down the appellate ladder. First, on September 7, 2004, the district court dismissed the case, concluding that Zivotofsky lacked Article III standing and, alternatively, that the case presented a nonjusticiable political question. Zivotofsky ex rel.

Zivotofsky v. Sec’y of State, No. 03-cv-1921, 2004 WL 5835212 (D.D.C. Sept. 7, 2004). We subsequently reversed and remanded, holding that Zivotofsky had standing.4 Zivotofsky ex rel. Zivotofsky v. Sec’y of State, 444 F.3d 614 (D.C. Cir. 2006). We noted that Zivotofsky had amended the injunctive relief he initially sought, requesting that the  Zivotofsky’s complaint alleged that the State Department also improperly recorded his place of birth on his consular report of birth abroad as “Jerusalem.” At oral argument, however, Zivotofsky’s counsel made clear that he raised no legal argument distinguishing the consular report of birth abroad from the passport.

Oral Arg. Tr. 23-24.

We did not reach the political question issue.

Secretary record “Israel” instead of “Jerusalem, Israel” as his place of birth on his passport. Id. at 616 n.1. Because “[t]hecase . . . no longer involve[d] the claim the district court considered,” we “remand[ed] the case to the district court so that both sides may develop a more complete record relating to these and other subjects of dispute.” Id. at 619-20.

On September 19, 2007, the district court again dismissed the case, once more deciding it presented a nonjusticiable political question. Zivotofsky ex rel. Zivotofsky v. Sec’y of State, 511 F. Supp. 2d 97 (D.D.C. 2007) (Zivotofsky III). We affirmed, concluding that “[b]ecause the judiciary has no authority to order the Executive Branch to change the nation’s foreign policy in this matter, this case is nonjusticiable under the political question doctrine.”

Zivotofsky v. Sec’y of State,

571 F.3d 1227, 1228 (D.C. Cir. 2009) (Zivotofsky IV).5

The United States Supreme Court vacated and remanded, holding that the case does not present a political question.

Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) (Zivotofsky V). The Court explained that “[t]he federal courts are not being asked to supplant a foreign policy decision of the political branches . . . . [i]nstead, Zivotofsky requests that the courts enforce a specific statutory right.” Id. at 1427. Given that the parties do not dispute the substance of section 214(d), that is, its requirement that “Israel” be recorded on the passport as the applicant’s birthplace at his request, “the only real question for the courts is whether thestatute is constitutional,” which requires “deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution.” Id. at 1427-28. The Court further  Senior Judge Edwards concurred, noting that he would have rejected Zivotofsky’s claim on the merits. Zivotofsky IV, 571 F.3d at 1233-34 (Edwards, J., concurring). explained that “[r]esolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of thestatute and of the passport and recognition powers.” Id. at 1430.

II. THE MERITS

Before addressing the merits, we address two preliminary matters. First, Zivotofsky argues that we must “ ‘not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.’ ” United States v. Brinson-Scott, 714 F.3d 616, 621 (D.C. Cir. 2013) (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). Zivotofsky maintains that we should not reach the Secretary’s constitutional defense because section 214(d) constitutes permissible passport legislation. But Zivotofsky’s proposed solution—that we hold in effect that the President’s constitutional recognition power is not so broad as to encompass section 214(d)—is a constitutional holding. We would not avoid “pass[ing] upon a constitutional question” by resolving the case in that manner; instead we would give the President’s constitutional power the narrow construction Zivotofsky presses. Moreover, the Supreme Court has specifically instructed us to examine “the textual, structural, and historical evidence . . . regarding the nature . . . of the passport and recognition powers.” Zivotofsky V, 132 S. Ct. at 1430.

Second, in Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579 (1952), Justice Jackson set forth a tripartite framework for evaluating the President’s powers to act depending on the level of congressional acquiescence. Id.

at 635 (Jackson, J., concurring); see also Medellin v. Texas, 552 U.S. 491, 524 (2008) (“Justice Jackson’s familiar tripartite scheme provides the accepted framework for

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evaluating executive action in this area.”). First, “[w]hen the President acts pursuant to an express or implied authorization

of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U.S. at 635. Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id. at 637. Third, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. Both parties agree that this case falls into category three. In this category the President may nonetheless exercise—and the Congress cannot invade—the President’s “exclusive power.” Id. at 637 n.4. The question here is whether exclusive Executive branch power authorizes the Secretary to decline to enforce section 214(d).

A. The Recognition Power

Recognition is the act by which “a state commits itself to treat an entity as a state or to treat a regime as the government  of a state.” RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW § 94(1). “The rights and attributes of sovereignty belong to [a state] independently of all recognition, but it is only after it has been recognized that it is assured of exercising them.” 1 John Bassett Moore, A Digest of International Law § 27, at 72 (1906) (MOORE’S INT’L LAW DIGEST). Recognition is therefore a critical step in establishing diplomatic relations with the United States; if the United States does not recognize a state, it means the United States is “unwilling[] to acknowledge that the government in question speaks as the sovereign authority for the territory it purports to control.”

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Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964). Recognition also confers other substantial benefits.

For example, a recognized sovereign generally may (1) maintain a suit in a United States court, see id. at 408-09;

Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938); (2) assert the sovereign immunity defense in a United States court, see Nat’l City Bank v. Republic of China, 348 U.S. 356, 359 (1955); and (3) benefit from the “act of state” doctrine, which provides that “[e]very sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory,” Oetjen v. Cent. Leather Co., 246 U.S. 297, 303 (1918) (quotation marks omitted).

A government typically recognizes a foreign state by “written or oral declaration.” 1 MOORE’S INT’L LAW DIGEST§ 27, at 73. Recognition may also be implied as “when a [recognizing] state enters into negotiations with the new state, sends it diplomatic agents, receives such agents officially, gives exequaturs to its consuls, [and] forms with it conventional relations.”6 Id.; see also David Gray Adler, The President’s Recognition Power, reprinted in The Constitution and the Conduct of American Foreign Policy 133 (DavidGray Adler & Larry N. George eds., 1996) (“At international law, the act of receiving an ambassador of a foreign government entails certain legal consequences. The reception of an ambassador constitutes a formal recognition of the sovereignty of the state or government represented.”).

6 An exequatur is a “document from the host country [to a foreign consul] that permits the consul to take up consular functions.” Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power Over Foreign Affairs, 111 YALE L.J. 231, 313 (2001).

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As noted earlier, the Supreme Court has directed us to examine the “textual, structural, and historical evidence” the parties have marshaled regarding “the nature . . . of the passport and recognition powers.” Zivotofsky V, 132 S. Ct. at 1430. We first address the recognition power and, in particular, whether the power is held exclusively by the President.

B. The President and the Recognition Power

Text and Originalist Evidence

Neither the text of the Constitution nor originalist evidence provides much help in answering the question of the scope of the President’s recognition power. In support of his view that the recognition power lies exclusively with the President, the Secretary cites the “receive ambassadors” clause of Article II, Section 3 of the Constitution, which provides, inter alia, that the President “shall receive Ambassadors and other public Ministers.” U.S. CONST., art II,

§ 3. But the fact that the President is empowered to receive ambassadors, by itself, does not resolve whether he has the exclusive authority to recognize foreign nations. Some scholars have suggested other constitutional provisions as possible sources of authority for the President to exercise the recognition power but conclude that the text of those provisions does not itself resolve the issue.7

7 See, e.g., Reinstein, supra, at 809 & n.48, 810-11, 816

(discussing, but finding inconclusive, text of U.S. CONST., art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the

United States of America.”); U.S. CONST., art. II, § 2, cl. 2 (President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors[ and] other public Ministers and Consuls”); U.S. CONST., art. II, § 3 (“[President] shall take Care that the Laws be faithfully executed”)

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Originalist evidence also fails to clarify the Constitution’s text. The Federalist Papers contain no mention of the recognition power although Federalist No. 69, written by Alexander Hamilton under the pseudonym “Publius,” refers to the “receive ambassadors” clause. Writing in 1788, Hamilton characterized the clause as virtually meaningless:

[T]hough it has been a rich theme of declamation,8[it] is more a matter of dignity than of authority[,] . . . . a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in thismanner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister; though it were merely to take the place of a departed predecessor.

Alexander Hamilton, Federalist No. 69, reprinted in The Federalist 360 (George W. Carey & James McLellan eds.2001). The President’s power to receive ambassadors may of necessity mean that he has the power not only to “receive” a foreign ambassador but also to decide whether and when to as compared with legislative powers set forth in U.S. CONST., art. I, § 8, cls. 3, 4, 11, 18 (“The Congress shall have Power To . . . regulate Commerce with foreign Nations, . . . establish an uniform Rule of Naturalization, . . . declare War . . . [and] make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”)); see also Prakash & Ramsey, supra, at 234-35, 253, 316-17 (interpreting Executive Vesting Clause, U.S. CONST., art. II, § 1, cl. 1., and using, inter alia, eighteenth-century meaning of executive power).

8 Scholars, it appears, have  been unable to confirm Hamilton’s claim that the “receive ambassadors” clause “has been a rich theme of declamation.” See Reinstein, supra, at 845-46.

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receive him.9 In fact, five years after writing Federalist No. 69, Hamilton adopted this interpretation of the “receive ambassadors” clause. In 1793, while serving in President George Washington’s cabinet, Hamilton, then writing as “Pacificus,” declared that the clause gave the President the power to determine whether the government sending the ambassador should be recognized by the United States.

United States National Archives, Pacificus No. 1 (June 29, 1793), available at http://founders.archives.gov/documents/Hamilton/01-15-02-0038. Hamilton explained that “[t]he Legislative Department is not the organ of intercourse between the UStates and foreign Nations. . . . It is therefore not naturally that Organ of the Government which is to pronounce the existing condition of the Nation, with regard to foreign Powers . . . .” Id. Rather, “[t]he right of the Executive to receive ambassadors and other public Ministers . . . . includes that of judging, in the case of a Revolution of Government in a foreign Country, whether the new rulers are competent organs of the National Will and ought to be recognised or not.” Id.

There is little other ratification-era evidence regarding the recognition of foreign governments. In fact, “there is no record that the subject of recognizing foreign states or governments ever came up in the [Constitutional] Convention.” Reinstein, supra, at 845. One scholar offers two explanations for this gap. First, he suggests that “the founders carefully enumerated the powers of the President andAccording to the Restatement, when the President receives an ambassador, he recognizes by implication the sovereignty of the sending foreign government. See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 204, Reporters’ Note 2 (“Recognition of a state has been effected by . . . receiving the credentials of a diplomatic representative of that state.”).

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deliberately omitted the recognition power.” Id. at 860. But if  this were the case, it would be unclear which branch, if any, possessed the power. His second explanation is more plausible: “Whether the European nations would accept the United States into their community was of considerable importance to the new nation, but whether the United States would ‘recognize’ the European nations was a non[ ]sequitur.” Id. at 861. In other words, the Framers apparently were not concerned with how their young country recognized other nations because the issue was not important to them at the time of ratification.

Post-ratification History

Both parties make extensive arguments regarding the post-ratification recognition history of the United States. As the Supreme Court has explained, longstanding and consistent post-ratification practice is evidence of constitutional meaning. See, e.g., Republican Party of Minn. v. White, 536 U.S. 765, 785 (2002) (“[A] universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional . . . .” (quotation marks omitted)); Mistretta v. United States, 488U.S. 361, 401 (1989) (“Our 200-year tradition of extrajudicial service is additional evidence that the doctrine of separated powers does not prohibit judicial participation in certain extrajudicial activity.”); Marsh v. Chambers, 463 U.S. 783, 790 (1983) (“two centuries of national practice,” including practice authorized by first Congress, provides “contemporaneous and weighty evidence” of constitutionality (quotation marks omitted)). We conclude that longstanding post-ratification practice supports the Secretary’s position that the President exclusively holds the recognition power.

Beginning with the administration of our first President, George Washington, the Executive has believed that it has the exclusive power to recognize foreign nations. In 1793, President Washington’s cabinet unanimously concluded that Washington need not consult with the Congress before receiving the minister from France’s post-revolutionary government, notwithstanding his receiving the minister recognized the new government by implication. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power Over Foreign Affairs, 111 YALE L.J. 231, 312 (2001). Nor did the Congress “purport[ ] to tell Washington which countries or governments to recognize.” Id. at 312-13. The Washington administration also took sole control of issuing exequaturs to foreign consuls. Id. at 313 (President Washington “not only signed exequaturs, he also set policy respecting their issuance” (footnote omitted)); see also 3 Thomas Jefferson,Memoir, Correspondence, and Miscellanies from the Papers of Thomas Jefferson 298 (Thomas Jefferson Randolph ed. 1829) (“[T]he commission of consul to M. Dannery ought to have been addressed to the President of the United States. He being the only channel of communication between this country and foreign nations, it is from him alone that foreign nations or their agents are to learn what is or has been the will of the nation . . . .” (emphases added)).

In 1817, President James Monroe prevailed in a standoff with Speaker of the House Henry Clay over the recognition power. Clay had announced that he “intended moving the recognition of Buenos Ayres and probably of Chile.” Julius Goebel, Jr. The Recognition Policy of the United States 121 (1915). But when Clay attempted to amend an appropriations bill to appropriate $18,000 for an American minister to be sent to South America, id. at 123-24, he was forced to modify the amendment to manifest that the decision whether to send the minister belonged to the President, see 32 ANNALS OF CONGRESS 1498-1500 (1818). And, in fact, even Clay’s weakened amendment was defeated in the House; “the reason for the defeat appears to have been that the amendment was interfering with the functions of the executive.”

Goebel, supra, at 124; see also 32 ANNALS OF CONG. 1538 (1818)

(statement of Rep. Smith) (“The Constitution has given . . . to

the President the direction of our intercourse with foreign

nations. It is not wise for us to interfere with his powers

. . . .”); id. at 1570 (statement of Rep. Smyth) (“[T]he

acknowledgement of the independence of a new Power is an

exercise of Executive authority; consequently, for Congress to

direct the Executive how he shall exercise this power, is an

act of usurpation.”). According to Goebel, Clay’s defeat

“meant a great increase of strength for the administration”

because “it had received a direct confirmation of its ultimate

right to determine whether a government was to be

recognized.” Goebel, supra, at 124.

In 1864 and, again, 1896, the Executive branch

challenged the individual houses of the Congress for intruding

into the realm of recognition, which eventually led the

Congress to refrain from acting. In 1864, the House passed a

resolution asserting that it did not acknowledge Archduke

Ferdinand Maximilian von Habsburg as the Emperor of

Mexico. CONG. GLOBE, 38TH CONG., 1ST SESS. 1408 (1864).

The then-Secretary wrote to the United States Minister to

France, stating that the recognition authority is “purely

executive,” belonging “not to the House of Representatives,

nor even to Congress, but to the President.” Id. at 2475. The

Senate ultimately did not act on the bill.10 In 1896, the Senate

Foreign Relations Committee presented a joint resolution to

10 The House subsequently passed a resolution that stated, in

pertinent part, “Congress has a constitutional right to an

authoritative voice in declaring and prescribing the . . . recognition

of new Powers as in other matters . . . .” CONG. GLOBE, 38TH

CONG., 2D SESS. 65-67 (1864). The Senate never acted on the

resolution. Edward S. Corwin, The President’s Control of Foreign

Relations at 42-43 (1917).

20

the full Senate purporting to recognize Cuba’s independence.

29 CONG. REC. 326, 332 (1896). The then-Secretary

responded with a statement that the power to “recognize the

so-called Republic of Cuba as an independent State rests

solely with the Executive”; a joint resolution would have only

“advice of great weight.” Eugene V. Rostow, Great Cases

Make Bad Law: The War Powers Act, 50 TEX. L. REV. 866-67

(1972) (quotation marks omitted); see also Congress

Powerless, N.Y. TIMES, Dec. 19, 1896, available at http://

query.nytimes.com/mem/archive-free/pdf?res=F10D13F73B5

F1B738DDDA90A94DA415B8685F0D3. Again, the Senate

did not act on the proposed joint resolution.

In 1919, the Congress once again relented in response to

the President’s assertion of exclusive recognition power. That

year, the Senate considered a resolution which recommended

withdrawing recognition of the then-existing Mexican

government. PRELIM. REPORT & HR’GS OF THE SEN. COMM.

ON FOREIGN RELATIONS, INVESTIGATION OF MEXICAN

AFFAIRS, S. DOC. NO. 66-285, at 843D (2d. Sess. 1919-20). In

response, President Woodrow Wilson informed the Congress

that the resolution, if enacted, would “constitute a reversal of

our constitutional practice which might lead to very grave

confusion in regard to the guidance of our foreign affairs”

because “the initiative in directing the relations of our

Government with foreign governments is assigned by the

Constitution to the Executive, and to the Executive, only.” Id.

“Within half an hour of the letter’s receipt[,] Senator Lodge,

Chairman of the Foreign Relations Committee, announced

that the [ ] resolution was dead. President Wilson, Mr. Lodge

said, must now accept entire responsibility for Mexican

relations.” Wilson Rebuffs Senate on Mexico, N.Y. TIMES,

Dec. 8, 1919, available at http://query.nytimes.com/mem/

archive-free/pdf?res=9C00E2DD123BEE32A2575AC0A964

9D946896D6CF.

21

Zivotofsky marshals several isolated events in support of

his position that the recognition power does not repose solely

in the Executive but they are unconvincing. First, Zivotofsky

argues that in 1898 the Senate passed a joint resolution stating

“the Government of the United States hereby recognizes the

Republic of Cuba as the true and lawful Government of that

Island.” Br. for Appellant 42. But review of the Congressional

Record shows that the quoted language was not included in

the joint resolution; rather, it was included in a proposed joint

resolution in the Senate. See 31 CONG. REC. 3988 (1898). And

the proposed resolution raised separation-of-powers concerns

with many Senators. See id. at 3990 (statement of Sen.

Gorman) (“I regret exceedingly . . . for the first time in the

history of the country, this great body should incorporate . . . a

power which has been disputed by every Executive from

Washington down—the right of Congress by law to provide

for the recognition of a state.”); id. at 3991 (statement of Sen.

Allison (calling amendment “contravention of . . . well-settled

principles” and Executive “alone can deal with this question

in its final aspects”); id. at 3991-92 (statement of Sen.

Aldrich) (“We have no right at such a time to exercise

functions that belong to the Executive.”). When the House

received the proposed joint resolution, it removed the

recognition clause. See id. at 4080. The joint resolution, as

passed, stated only that “the people” of Cuba were “free and

independent.” See 30 Stat. 738 (Apr. 20, 1898).11

Zivotofsky also relies on events that occurred during the

administrations of President Andrew Jackson and President

11 The joint resolution provided in full: “Resolved by the

Senate and House of Representatives of the United States of

America in Congress assembled, First. That the people of the Island

of Cuba are, and of right ought to be, free and independent.” 30

Stat. 738 (Apr. 20, 1898).

22

Abraham Lincoln. In both instances, however, the Congress

did not attempt to exercise the recognition power. Instead, it

authorized appropriations to be used by the President to

dispatch diplomatic representatives. In 1836, President

Jackson expressed a desire to “unite” with the Congress

before recognizing Texas as independent from Mexico.

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES UPON

THE SUBJECT OF THE POLITICAL, MILITARY, AND CIVIL

CONDITION OF TEXAS, H.R. DOC. NO. 24-35, at 4 (2d Sess.

1836). But in doing so, Jackson did not suggest that he lacked

the exclusive recognition power. See id. at 2 (“[O]n the

ground of expediency, I am disposed to concur, and do not,

therefore, consider it necessary to express any opinion as to

the strict constitutional right of the Executive, either apart

from or in conjunction with the Senate, over the subject.”).

Rather, Jackson merely enlisted the support of the Congress

as a matter of political prudence. In any event, the Congress

did not attempt to exercise the recognition power on its own.

Instead, the Congress appropriated funds for the President to

authorize a “diplomatic agent to be sent to the Republic of

Texas, whenever the President of the United States . . . shall

deem it expedient to appoint such minister.” 5 Stat. 107

(1837). Similarly, President Lincoln expressed a desire to

coordinate with the Congress by requesting that it use its

appropriations authority to endorse his recognition of Liberia

and Haiti. See Lincoln’s First Annual Message to Congress

(Dec. 3, 1861), available at http://www.presidency.ucsb.edu/

ws/?pid=29502. And the Congress subsequently did so. 12

Stat. 421.12

12 Zivotofsky also calls our attention to the recognition of

Hungary during President Zachary Taylor’s administration. The

Secretary wrote to the President’s appointed minister to Hungary:

“Should the new government prove to be, in your opinion, firm and

23

Supreme Court Precedent

It is undisputed that “in the foreign affairs arena, the

stable, the President will cheerfully recommend to Congress, at

their next session, the recognition of Hungary.” Letter from Clayton

to Mann (June 18, 1849), reprinted in 1 MOORE’S INT’L L. DIGEST

§ 75, at 246. Zivotofsky argues that the letter manifests Taylor’s

uncertainty regarding his exclusive recognition authority. But

another communication from President Taylor made clear that he

understood that he was authorized to recognize Hungary without

the Congress. See 5 A Compilation of the Messages and Papers of

the Presidents, 1789-1897 at 12 (James D. Richardson ed. 1897)

(State of the Union address) (“I thought it my duty, in accordance

with the general sentiment of the American people, . . . to stand

prepared, upon the contingency of the establishment by her of a

permanent government, to be the first to welcome independent

Hungary into the family of nations. For this purpose I invested an

agent then in Europe with power to declare our willingness

promptly to recognize her independence in event of her ability to

sustain it.” (emphasis added)). Whatever Taylor’s uncertainty, it

sounds alone in stark contrast to otherwise seamless postratification

history.

In addition, Amicus American Jewish Committee supplies

other examples of Presidential enlistment of the Congress’s

support. See, e.g., Am. Jewish Committee Amicus Br. at 9-10

(Washington considered removing diplomatic authority of France’s

minister and instructed Thomas Jefferson to draft message stating

he intended to remove Genet’s diplomatic authority unless either

house objected). None of them acknowledge either expressly or by

implication that the recognition power was one shared, under the

Constitution, with the Congress. We are also unpersuaded by

amicus’s citation to Secretary of State James Buchanan’s

observation that “recognition is usually effected, either by a

nomination to, and confirmation by the Senate of a Diplomatic or

Consular agent to the new Government, or by an act of Congress.”

1 MOORE’S INT’L L. DIGEST § 75, at 245-46.

24

President has ‘a degree of discretion and freedom from

statutory restriction which would not be admissible were

domestic affairs alone involved.’ ” Clinton v. City of New

York, 524 U.S. 417, 445 (1998) (quoting United States v.

Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).

While the President’s foreign affairs powers are not precisely

defined, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 634-35 (1952) (Jackson, J., concurring), the courts have

long recognized the President’s presumptive dominance in

matters abroad. See, e.g., Am. Ins. Ass’n v. Garamendi, 539

U.S. 396, 415 (2003) (“[O]ur cases have recognized that the

President has authority to make ‘executive agreements’ with

other countries, requiring no ratification by the Senate or

approval by Congress, this power having been exercised since

the early years of the Republic.”); Youngstown, 343 U.S. at

610 (President has “vast share of responsibility for the

conduct of our foreign relations”) (Frankfurter, J.,

concurring); Johnson v. Eisentrager, 339 U.S. 763, 789

(1950) (“President is exclusively responsible” for “conduct of

diplomatic and foreign affairs”); Legal Assistance for

Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349,

1353 (D.C. Cir. 1997) (“[C]ourts have been wary of secondguessing

executive branch decision[s] involving complicated

foreign policy matters.”). Thus, the Court, echoing the words

of then-Congressman John Marshall, has described the

President as the “sole organ of the nation in its external

relations, and its sole representative with foreign nations.”

Curtiss-Wright, 299 U.S. at 319 (quoting 10 ANNALS OF

CONG. 613 (Mar. 7, 1800)).

The Supreme Court has more than once declared that the

recognition power lies exclusively with the President. See

Williams v. Suffolk Ins. Co., 38 U.S. 415, 420 (1839) (“[If] the

executive branch . . . assume[s] a fact in regard to the

sovereignty of any island or country, it is conclusive on the

judicial department[.]”); United States v. Belmont, 301 U.S.

25

324, 330 (1937) (“[T]he Executive had authority to speak as

the sole organ of th[e] government” in matters of

“recognition, establishment of diplomatic relations, the

assignment, and agreements with respect thereto . . . .”);

Guaranty Trust Co. v. United States, 304 U.S. 126, 138

(1938) (“We accept as conclusive here the determination of

our own State Department that the Russian State was

represented by the Provisional Government . . . .”); United

States v. Pink, 315 U.S. 203, 229 (1942) (“The powers of the

President in the conduct of foreign relations included the

power, without consent of the Senate, to determine the public

policy of the United States with respect to the Russian

nationalization decrees. . . . [including t]h[e] authority . . . [to

determine] the government to be recognized.”); Baker v.

Carr, 369 U.S. 186, 213 (1962) (“[I]t is the executive that

determines a person’s status as representative of a foreign

government.”); Banco Nacional de Cuba v. Sabbatino, 376

U.S. 398, 410 (1964) (“Political recognition is exclusively a

function of the Executive.”). To be sure, the Court has not

held that the President exclusively holds the power. But, for

us—an inferior court—“carefully considered language of the

Supreme Court, even if technically dictum, generally must be

treated as authoritative,” United States v. Dorcely, 454 F.3d

366, 375 (D.C. Cir. 2006) (quotation marks omitted); see also

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)

(Marshall, C.J.), especially if the Supreme Court has repeated

the dictum, see Overby v. Nat’l Ass’n of Letter Carriers, 595

F.3d 1290, 1295 (D.C. Cir. 2010) (Supreme Court dictum is

“especially” authoritative if “the Supreme Court has

reiterated the same teaching”).

In Williams v. Suffolk Insurance Company, the issue

before the Court was whether “the Falkland islands . . .

constitute any part of the dominions within the sovereignty of

the government of Buenos Ayres.” 38 U.S. at 419. The Court

26

decided that the President’s action in the matter was

“conclusive on the judicial department.” Id. at 420.

And can there be any doubt, that when the executive

branch of the government, which is charged with our

foreign relations, shall in its correspondence with a

foreign nation assume a fact in regard to the

sovereignty of any island or country, it is conclusive

on the judicial department? And in this view it is not

material to inquire, nor is it the province of the Court

to determine, whether the executive be right or

wrong. It is enough to know, that in the exercise of

his constitutional functions, he has decided the

question. Having done this under the responsibilities

which belong to him, it is obligatory on the people

and government of the Union.

Id. Similarly, in Banco Nacional de Cuba v. Sabbatino,

without determining whether the United States had derecognized

Cuba’s government under Fidel Castro, the Court

explained that “[p]olitical recognition is exclusively a

function of the Executive.” 376 U.S. at 410. The Court

emphasized that were it to decide for itself whether Cuba had

been de-recognized, there would be a real “possibility of

embarrassment to the Executive Branch in handling foreign

relations.” Id. at 412.

President Franklin D. Roosevelt’s 1933 recognition of the

Soviet Union led to three cases supporting the conclusion that

the President exclusively holds the recognition power.

Belmont, 301 U.S. 324; Guaranty Trust, 304 U.S. 126; Pink,

315 U.S. 203. On November 16, 1933, the United States

recognized the Soviet Union as the government of Russia

“and as an incident to that recognition accepted an assignment

(known as the Litvinov Assignment) of certain claims.” Pink,

315 U.S. at 211. Under the Litvinov Assignment, the Soviet

Union agreed to “take no steps to enforce claims against

27

American nationals; but all such claims were released and

assigned to the United States.” Belmont, 301 U.S. at 326.

When the United States sought to collect on the assigned

claims, its action spawned litigation resulting in the three

cases.

In Belmont, the Court held that New York State’s

conflicting public policy did not prevent the United States

from collecting assets assigned by the Litvinov Assignment.

Id. at 330. It noted that “who is the sovereign of a territory is

not a judicial question, but one the determination of which by

the political departments conclusively binds the courts.” Id. at

328 (emphasis added). But the Court then more specifically

explained that “recognition, establishment of diplomatic

relations, the assignment, and agreements with respect

thereto, were all parts of one transaction” and plainly “within

the competence of the President.” Id. at 330 (emphasis

added). Moreover, “in respect of what was done here, the

Executive had authority to speak as the sole organ of that

government. The assignment and the agreements in

connection therewith did not, as in the case of treaties, . . .

require the advice and consent of the Senate.” Id. (emphases

added). In other words, the Court not only emphasized the

President’s exclusive recognition power but also distinguished

it from the shared treaty power.

In Guaranty Trust, the Court held that a United States

claim for payment of funds held in a bank account formerly

owned by Russia was barred by New York State’s statute of

limitations. 304 U.S. at 130, 143-44. In so doing, it relied on

the Executive branch’s recognition determination: which

“government is to be regarded here as representative of a

foreign sovereign state is a political rather than a judicial

question, and is to be determined by the political department

of the government. . . . We accept as conclusive here the

determination of our own State Department that the Russian

28

State was represented by the Provisional Government.” Id. at

137-38 (emphasis added).

Finally, the Supreme Court in Pink, following Belmont,

held that New York State could not “deny enforcement of a

claim under the Litvinov Assignment because of an

overriding [state] policy.” Pink, 315 U.S. at 222. The Court

defined the recognition power broadly and placed it in the

hands of the President:

The powers of the President in the conduct of

foreign relations included the power, without consent

of the Senate, to determine the public policy of the

United States with respect to the Russian

nationalization decrees. . . . That authority is not

limited to a determination of the government to be

recognized. It includes the power to determine the

policy which is to govern the question of recognition.

Objections to the underlying policy as well as

objections to recognition are to be addressed to the

political department and not to the courts. . . .

Id. at 229 (citations omitted and emphases added).

The Court also treated the recognition power as

belonging exclusively to the Executive in Baker v. Carr. It

explained that “recognition of [a] foreign government[] so

strongly defies judicial treatment that without executive

recognition a foreign state has been called a republic of whose

existence we know nothing.” 369 U.S. at 212 (quotation

marks and footnote omitted). The Court further explained that

“the judiciary ordinarily follows the executive as to which

nation has sovereignty over disputed territory” and that “it is

the executive that determines a person’s status as

representative of a foreign government.” Id. at 212-13

(emphases added).

29

Zivotofsky relies on United States v. Palmer, 16 U.S. 610

(1818), where the Court stated that “the courts of the union

must view [a] newly constituted government as it is viewed

by the legislative and executive departments of the

government of the United States.” See id. at 643. But this

observation simply means that the judiciary will not decide

the question of recognition. When the High Court has

discussed the recognition power with more specificity, as it

did in the above-cited cases, it has not merely stated that the

judiciary lacks authority to decide the issue but instead has

explained that the President has the exclusive authority. In

addition, Zivotofsky’s reliance on Cherokee Nation v.

Georgia, 30 U.S. 1 (1831), is misplaced as the case dealt with

the recognition of Indian tribes which, the Cherokee Nation

opinion itself explains, are materially distinct from foreign

nations. See id. at 18 (Marshall, C.J.); see also Miami Nation

of Indians of Ind., Inc. v. U.S. Dep’t of the Interior, 255 F.3d

342, 345 (7th Cir. 2001) (“Indian tribes are not foreign

[states] . . . .”).13

13 Zivotofsky also cites three other cases he contends indicate

the recognition power lies with both “political departments.” They

include: “Boumediene v. Bush, 553 U.S. 723, 753 (2008) (‘[T]he

Court has held that questions of sovereignty are for the political

branches to decide.’); Vermilya-Brown Co. v. Connell, 335 U.S.

377, 380 (1948) (‘[T]he determination of sovereignty over an area

is for the legislative and executive departments . . . .’); [and] Jones

v. United States, 137 U.S. 202, 214 (1890) (‘[A]ll courts of justice

are bound to take judicial notice of the territorial extent of the

jurisdiction exercised by the government whose laws they

administer, or of its recognition or denial of the sovereignty of a

foreign power, as appearing from the public acts of the legislature

and executive . . . .’).” Br. for Appellant 43 (emphases in brief). But

Boumediene, Vermilya-Brown and Jones do not involve the

recognition of a foreign power; rather, they relate to the authority of

30

Having reviewed the Constitution’s text and structure,

Supreme Court precedent and longstanding post-ratification

history, we conclude that the President exclusively holds the

power to determine whether to recognize a foreign

sovereign.14

the United States over a given territory. Because the Congress has

the enumerated constitutional power to “make all needful Rules and

Regulations respecting the Territory or other Property belonging to

the United States,” U.S. CONST., art. IV, § 3, cl. 2, the three cases

are distinguishable.

14 Zivotofsky points to early legal scholarship, including a

treatise written by William Rawle: “The legislature indeed

possesses a superior power, and may declare its dissent from the

executive recognition or refusal, but until that sense is declared, the

act of the executive is binding.” William Rawle, A View of the

Constitution of the United States of America 195-96 (Philip H.

Nicklin 2d ed. 1829). In 1833, Justice Joseph Story wrote that the

recognition question was an “abstract statement[ ] under the

constitution” that was “still open to discussion.” 2 Joseph Story,

Commentaries on the Constitution of the United States § 1566

(Little & Brown 2d ed. 1851). Moreover, while “[t]he constitution

has expressly invested the executive with power to receive

ambassadors, and other ministers[ i]t has not expressly invested

congress with the power, either to repudiate, or acknowledge

them.” Id. at 359 (emphasis added). Subsequently, while sitting as a

Circuit Justice, Justice Story wrote that “[i]t is very clear, that it

belongs exclusively to the executive department of our government

to recognize, from time to time, any new governments, which may

arise in the political revolutions of the world . . . .” Williams v.

Suffolk Ins. Co., 29 F. Cas. 1402, 1403 (C.C.D. Mass. 1838).

31

C. Section 214(d) and the “Passport Power” vis-à-vis the

Recognition Power

Having concluded that the President exclusively holds the

recognition power, we turn to the “passport power,” pursuant

to which section 214(d) is alleged to have been enacted. We

must decide whether the Congress validly exercised its

passport power in enacting section 214(d) or whether section

214(d) “impermissibly intrudes” on the President’s exclusive

recognition power. Zivotofsky V, 132 S. Ct. at 1428.

Zivotofsky first contends that section 214(d) is a

permissible exercise of the Congress’s “passport power.” In

its remand to us, the Supreme Court directed that we examine,

inter alia, the parties’ evidence regarding “the nature of . . .

the passport . . . power[ ].” Id. at 1430. Neither party has

made clear the textual source of the passport power in the

Constitution, suggesting that it may come from the

Congress’s power regarding immigration and foreign

commerce. See, e.g., Oral Arg. Tr. 48-49 (Zivotofsky’s

counsel noting “there’s no specific power in the Constitution

that says passports” and referencing the Congress’s authority

“over immigration[ and] over international commerce”); Br.

for Appellee 45 (citing U.S. CONST., art. I, § 8, cls. 3, 4).

Nonetheless, it is clear that the Congress has exercised its

legislative power to address the subject of passports. It does

not, however, have exclusive control over all passport

matters. Rather, the Executive branch has long been involved

in exercising the passport power, especially if foreign policy

is implicated. See Haig v. Agee, 453 U.S. 280 (1981). Until

1856, no passport statute existed and so “the common

perception was that the issuance of a passport was committed

to the sole discretion of the Executive and that the Executive

would exercise this power in the interests of the national

security and foreign policy of the United States.” Id. at 293.

After the first passport law was enacted in 1856, “[t]he

32

President and the Secretary of State consistently construed the

1856 Act to preserve their authority to withhold passports on

national security and foreign policy grounds.” Id. at 295. And

once the Congress enacted the Passport Act of 1926, each

successive President interpreted the Act to give him the

authority to control the issuance of passports for national

security or foreign policy reasons: “Indeed, by an unbroken

line of Executive Orders, regulations, instructions to consular

officials, and notices to passport holders, the President and the

Department of State left no doubt that likelihood of damage to

national security or foreign policy of the United States was

the single most important criterion in passport decisions.” Id.

at 298 (footnotes omitted and emphasis added); see also 16

U.S. Op. Off. Legal Counsel 18, 23 (1992) (“Executive action

to control the issuance of passports in connection with foreign

affairs has never been seriously questioned.”).

Zivotofsky relies on Supreme Court precedent that, he

contends, shows the Executive cannot regulate passports

unless the Congress has authorized him to do so. In both cases

cited, the Court held that the Executive branch acted properly

once the Congress had authorized it to so act. See Haig, 453

U.S. at 282, 289, 309 (upholding Executive authority to

revoke passport on national security and foreign policy

grounds after concluding revocation was authorized by

Congress); Zemel v. Rusk, 381 U.S. 1, 8 (1965) (upholding

State Department’s refusal to validate passport for travel to

Cuba because “the Passport Act of 1926 embodie[d] a grant

of authority to the Executive” (citation omitted)). But in

neither case did the Court state that the Congress’s power

over passports was exclusive. Indeed, in Haig, the Court made

clear that it did not decide that issue. Haig, 453 U.S. at 289

n.17 (“In light of our decision on this issue, we have no

occasion in this case to determine the scope of the very

delicate, plenary and exclusive power of the President as the

sole organ of the federal government in the field of

33

international relations—a power which does not require as a

basis for its exercise an act of Congress . . . .” (quotation

marks omitted)). Likewise, in Zemel, the Court in effect

rejected the dissenters’ statements implying that the Congress

exclusively regulates passports. 381 U.S. at 21 (Black, J.,

dissenting) (“[R]egulation of passports . . . is a law-making—

not an executive, law-enforcing—function . . . .”); id. at 29

(Goldberg, J., dissenting) (Executive lacks “an inherent power

to prohibit or impede travel by restricting the issuance of

passports”). Instead, the Court emphasized that the

“Congress—in giving the Executive authority over matters of

foreign affairs—must of necessity paint with a brush broader

than that it customarily wields in domestic areas.” Id. at 17.15

15 Amicus Members of the United States Senate and the United

States House of Representatives rely on the holding in Kent v.

Dulles, 357 U.S. 116 (1958). In Kent, two citizens successfully

challenged the Secretary’s denial of their passports—on the ground

that they refused to state whether they were communists—arguing

that, inter alia, the denial violated their Fifth Amendment due

process right of travel. Id. at 117-20, 125. But Kent held, at most,

that absent congressional authorization, the State Department could

not deny a passport if the denial violated a constitutional right. See

id. at 129 (“If [constitutional] liberty is to be regulated, it must be

pursuant to the lawmaking functions of the Congress.” (quotation

marks omitted)). Here, the State Department has not denied

Zivotofsky a passport nor does Zivotofsky assert the violation of a

constitutional right. Moreover, the Court itself has not treated Kent

as if it held that the Executive’s regulation of passports is entirely

dependent on congressional authorization. See Haig, 453 U.S. at

289 n.17. For example, in Zemel, the Court distinguished Kent on

the basis that Kent had invalidated the State Department’s denial

“based on the character of the particular applicant.” 381 U.S. at 13.

In contrast, the denial that Zemel upheld was based on “foreign

policy considerations affecting all citizens”—namely, avoiding the

34

Thus, while the Congress has the power to enact passport

legislation, its passport power is not exclusive. And if the

Congress legislates pursuant to its non-exclusive passport

power in such a way to infringe on Executive authority, the

legislation presents a separation of powers problem. See, e.g.,

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130

S. Ct. 3138 (2010) (Sarbanes-Oxley Act’s dual for-cause

limitations on removal of members of financial oversight

board unconstitutional on separation of powers ground);

Bowsher v. Synar, 478 U.S. 714, 769 (1986) (“[E]ven the

results of the constitutional legislative process may be

unconstitutional if those results are in fact destructive of the

scheme of separation-of-powers.”).

The question we must answer, then, is whether section

214(d)—which speaks only to passports—nonetheless

interferes with the President’s exclusive recognition power.

Zivotofsky contends that section 214(d) causes no such

interference because of its limited reach, that is, it simply

regulates one detail of one limited type of passport. But the

President’s recognition power “is not limited to a

determination of the government to be recognized”; it also

“includes the power to determine the policy which is to

govern the question of recognition.” Pink, 315 U.S. at 229.

Applying this rule, the Pink Court held that New York State

policy was superseded by the Litvinov Assignment when the

policy—which declined to give effect to claims under the

Litvinov Assignment—“collid[ed] with and subtract[ed] from

the [President’s recognition] policy” by “tend[ing] to restore

some of the precise impediments to friendly relations which

the President intended to remove” with his recognition policy.

Id. at 231.

danger that travel to Cuba by United States citizens “might involve

the Nation in dangerous international incidents.” Id. at 13, 15.

35

With the recognition power overlay, section 214(d) is

not, as Zivotofsky asserts, legislation that simply—and

neutrally—regulates the form and content of a passport.

Instead, as the Secretary explains, it runs headlong into a

carefully calibrated and longstanding Executive branch policy

of neutrality toward Jerusalem. Since 1948, American

presidents have steadfastly declined to recognize any foreign

nation’s sovereignty over that city. The Executive branch has

made clear that the status of Jerusalem must be decided not

unilaterally by the United States but in the context of a

settlement involving all of the relevant parties. See supra pp.

1-2. The State Department FAM implements the Executive

branch policy of neutrality by designating how a Jerusalemborn

citizen’s passport notes his place of birth. For an

applicant like Zivotofsky, who was born in Jerusalem after

1948, the FAM is emphatic: denote the place of birth as

“Jerusalem.” 7 FAM 1383.5-6 (JA 115); see also 7 FAM

1383 Ex. 1383.1 pt. II (JA 127) (stating that “Israel” “[d]oes

not include Jerusalem” and that for applicants born in

“Jerusalem,” “[d]o not write Israel or Jordan”). In his

interrogatory responses, the Secretary explained the

significance of the FAM’s Jerusalem directive: “Any

unilateral action by the United States that would signal,

symbolically or concretely, that it recognizes that Jerusalem is

a city that is located within the sovereign territory of Israel

would critically compromise the ability of the United States to

work with Israelis, Palestinians and others in the region to

further the peace process.” Def.’s Resps. to Pl.’s Interrogs. at

8-9, Zivotofsky ex rel. Zivotofsky v. Sec’y of State, No. 03-cv-

1921 (D.D.C. June 5, 2006) (JA 58-59). Furthermore, “[t]he

Palestinians would view any United States change with

respect to Jerusalem as an endorsement of Israel’s claim to

Jerusalem and a rejection of their own.” Id. at 9 (JA 59)

(emphasis added). Thus, “[w]ithin the framework of this

highly sensitive, and potentially volatile, mix of political,

36

juridical, and religious considerations, U.S. Presidents have

consistently endeavored to maintain a strict policy of not

prejudging the Jerusalem status issue and thus not engaging in

official actions that would recognize, or might be perceived as

constituting recognition of, Jerusalem as either the capital city

of Israel, or as a city located within the sovereign territory of

Israel.” Id. (emphasis added). “[R]eversal of United States

policy not to prejudge a central final status issue could

provoke uproar throughout the Arab and Muslim world and

seriously damage our relations with friendly Arab and Islamic

governments, adversely affecting relations on a range of

bilateral issues, including trade and treatment of Americans

abroad.” Id. at 11 (JA 61). We find the Secretary’s detailed

explanation of the conflict between section 214(d) and

Executive recognition policy compelling, especially given

“our customary policy to accord deference to the President in

matters of foreign affairs.” Ameziane v. Obama, 699 F.3d 488,

494 (D.C. Cir. 2012) (quotation marks omitted); see also

Jama v. Immigration & Customs Enforcement, 543 U.S. 335,

348 (2005) (noting “our customary policy of deference to the

President in matters of foreign affairs” that “may implicate

our relations with foreign powers . . . requir[ing]

consideration of changing political and economic

circumstances” (quotation marks omitted)); Rattigan v.

Holder, 689 F.3d 764, 769 (D.C. Cir. 2012) (finding “the

government’s arguments quite powerful, especially given the

deference owed the executive in cases implicating national

security” (quotation marks omitted)). By attempting to alter

the State Department’s treatment of passport applicants born

in Jerusalem, section 214(d) directly contradicts a carefully

considered exercise of the Executive branch’s recognition

power.

Our reading of section 214(d) as an attempted legislative

articulation of foreign policy is consistent with the Congress’

characterization of the legislation. By its own terms, section

37

214 was enacted to alter United States foreign policy toward

Jerusalem. The title of section 214 is “United States Policy

with Respect to Jerusalem as the Capital of Israel.” Pub. L.

No. 107-228 § 214, 116 Stat. at 1365 (emphasis added).

Section 214(a) explains that “[t]he Congress maintains its

commitment to relocating the United States Embassy in Israel

to Jerusalem and urges the President . . . to immediately begin

the process of relocating the United States Embassy in Israel

to Jerusalem.” Id. § 214(a), 116 Stat. at 1365-66. The House

Conference report accompanying the bill that became the

Foreign Relations Authorization Act explained that section

214 “contain[ed] four provisions related to the recognition of

Jerusalem as Israel’s capital.” H.R. Conf. Rep. 107-671 at 123

(Sept. 23, 2002). Various members of the Congress explained

that the purpose of section 214(d) was to affect United States

policy toward Jerusalem and Israel. See 148 CONG. REC.

H6,649, H6,649 (daily ed. Sept. 25, 2002) (statement of Rep.

Diaz-Balart) (“This legislation requires compliance with [the

Jerusalem Embassy Act16] that recognizes Jerusalem as the

capital of Israel . . . .”); id. at H6,653 (statement of Rep.

Hyde) (“[The bill] contains provisions to spur compliance

with [the Jerusalem Embassy Act] recognizing Jerusalem as

the capital of Israel.”); id. (statement of Rep. Lantos) (“Our

bill reaffirms United States policy that Jerusalem is the

undivided and eternal capital of the State of Israel.”); 148

CONG. REC. S9,401-02, S9,403 (daily ed. Sept. 26, 2002)

(statement of Sen. Helms) (“This bill . . . . recognize[s] the

right of Israel to name Jerusalem as its own capit[a]l . . . .”).

Moreover, as the Secretary averred earlier in this

litigation, the 2002 enactment of section 214 “provoked

strong reaction throughout the Middle East, even though the

16 The Jerusalem Embassy Act is discussed supra at pp. 3-4.

38

President in his signing statement said that the provision

would not be construed as mandatory and assured that ‘U.S.

policy regarding Jerusalem has not changed.’ ” Def.’s Resps.

to Pl.’s Interrogs. at 9-10, Zivotofsky ex rel. Zivotofsky v.

Sec’y of State, No. 03-cv-1921 (D.D.C. June 5, 2006) (JA 59-

60). For example, various Palestinian groups issued

statements asserting that section 214 “undermine[d] the role

of the U.S. as a sponsor of the peace process,” “undervalu[ed]

. . . Palestinian, Arab and Islamic rights in Jerusalem” and

“rais[ed] questions about the real position of the U.S.

Administration vis-à-vis Jerusalem.” Id. at 10 (JA 60)

(quotation marks omitted). As in Pink, the Secretary’s

enforcement of section 214(d) “would collide with and

subtract from the [President’s] policy” by “help[ing] keep

alive one source of friction” between the United States and

parties in conflict in the Middle East “which the policy of

recognition was designed to eliminate.” Pink, 315 U.S. at

231-32.17

Zivotofsky argues that the Secretary has not suffered—

and will not suffer—adverse foreign policy consequences by

issuing him a passport that lists his place of birth as Israel. He

asserts that the Secretary has admitted that, from time to time,

the State Department has inadvertently issued passports with

“Israel” as the place of birth to citizens born in Jerusalem and

that there is no evidence that the issuance of the passports

17 Unlike in Pink, here the legislation that conflicts with the

President’s recognition power was enacted by the Congress, not a

state. But, as we today hold, the President exclusively exercises the

recognition power. The Congress, like a state, may not

impermissibly intrude on an exclusive Executive power. Contrary to

Zivotofsky’s assertion, then, the fact that the Congress, rather than

a state legislature, enacted section 214(d) does not distinguish this

case from Pink.

39

resulted in harm to the United States’s foreign policy

interests. Similarly, Zivotofsky cites State Department records

that, before revision, referred to “Jerusalem, Israel.” Br. for

Appellant 14. Likewise, Amicus Zionist Organization of

America exhaustively catalogues official United States

websites that contained “Jerusalem, Israel” before recent

revisions. Zivotofsky further notes that “not a single

Palestinian or Arab interest group deemed it important enough

to submit an amicus curiae brief in the Supreme Court

contending that section 214(d) should not be enforced” nor

has any such group appeared in our court during this lengthy

litigation. Appellant’s Reply Br. 3. Zivotofsky also contends

that the Secretary’s fear of harm is exaggerated because

section 214(d)’s passport directive is not unlike its Taiwan

directive that allows an applicant born in Taiwan to specify as

his birthplace “Taiwan” rather than “China,” which directive

has been peacefully implemented. Br. for Appellant 54-56.18

Nonetheless, we are not equipped to second-guess the

Executive regarding the foreign policy consequences of

section 214(d). See, e.g., Chi. & S. Air Lines v. Waterman S.S.

Corp., 333 U.S. 103, 111 (1948) (“[T]he very nature of

executive decisions as to foreign policy is political, not

judicial . . . . They are decisions of a kind for which the

Judiciary has neither aptitude, facilities nor responsibility and

have long been held to belong in the domain of political

power not subject to judicial intrusion or inquiry.”); see also

Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988) (“[F]oreign

policy [is] the province and responsibility of the Executive.”)

18 The State Department included “Taiwan” on passports only

after determining that doing so was consistent with United States

policy that Taiwan is a part of China; by contrast, section 214(d) is

inconsistent with the United States’s policy of neutrality regarding

Jerusalem.

40

(quotation marks omitted); Haig, 453 U.S. at 292 (“Matters

intimately related to foreign policy and national security are

rarely proper subjects for judicial intervention.”). As the

Executive—the “sole organ of the nation in its external

relations,” Curtiss-Wright, 299 U.S. at 319—is the one branch

of the federal government before us19 and both the current

Executive branch as well as its predecessor believe that

section 214(d) would cause adverse foreign policy

consequences (and in fact presented evidence that it had

caused foreign policy consequences), that view is conclusive

on us. Cf. United States v. Nixon, 418 U.S. 683, 710 (1974)

(“[T]he courts have traditionally shown the utmost deference

to Presidential responsibilities . . . . involving foreign policy

considerations . . . .”). Moreover, Zivotofsky’s reliance on the

State Department’s earlier, incidental references to

“Jerusalem, Israel” or inclusion of “Israel” on the passports of

United States citizens born in Jerusalem is entirely misplaced.

The controversy does not arise because a website or passport

at one time included a reference connecting Jerusalem and

Israel. Rather, the unconstitutional intrusion results from

section 214(d)’s attempted alteration of United States policy

to require the State Department to take an official and

intentional action to include “Israel” on the passport of a

United States citizen born in Jerusalem. While the fact that

legislation merely touches on a policy relating to recognition

does not make it unconstitutional, section 214(d) does not do

so; instead the 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. Accordingly, we conclude that section 214(d)

19 While an amicus brief has been submitted on behalf of six

senators and fifty-seven representatives, they of course do not speak

for the Congress qua the Congress.

41

impermissibly intrudes on the President’s recognition power

and is therefore unconstitutional.

D. Zivotofsky’s Remaining Arguments

Zivotofsky challenges the Secretary’s decision declining

to enforce section 214(d) on two additional grounds but we

find both grounds without merit.

First, Zivotofsky contends that section 214(d) remedies

the State Department’s discriminatory policy against

supporters of Israel. He notes that an individual born in Tel

Aviv or Haifa after 1948 may list as his place of birth either

“Israel” or his local birthplace if he objects to including

“Israel.” See 7 FAM 1383.5-4 (JA 114). An individual born in

Jerusalem after 1948, as we have discussed, may not choose

between a country and a locality; rather, his place of birth

must be listed as “Jerusalem.” See 7 FAM 1383.5-6 (JA 115).

Zivotofsky laments that “[n]o matter where in Jerusalem an

American citizen may be born . . . he or she does not have the

option given to American citizens born in Tel Aviv or Haifa

to choose whether to record the country or city of birth.” Br.

for Appellant 57. We do not decide the merits of this

contention because Zivotofsky did not make it in district court

and it is therefore waived. See, e.g., Jicarilla Apache Nation

v. U.S. Dep’t of Interior, 613 F.3d 1112, 1117 (D.C. Cir.

2010).

Second, Zivotofsky argues that President George W.

Bush’s signing statement—indicating that section 214 is, in

his view, unconstitutional—is invalid because he should have

instead vetoed the enactment to register his objection. The

signing statement is irrelevant. Even if the signing statement

were before us and we were somehow to find it wanting, that

conclusion would have no effect on the Secretary’s

enforcement of section 214(d) today.

42

* * * *

For the foregoing reasons, we affirm the judgment of the

district court dismissing the complaint on the alternative

ground that section 214(d) impermissibly infringes on the

President’s exercise of the recognition power reposing

exclusively in him under the Constitution and is therefore

unconstitutional.20

So ordered.

20 The district court dismissed Zivotofsky’s complaint on the

ground that it presented a nonjusticiable political question.

Zivotofsky III, 511 F. Supp. 2d at 99. While the district court did not

reach the merits, we need not remand because no factual

development is necessary to decide the case. See, e.g., Timbisha

Shoshone Tribe v. Salazar, 678 F.3d 935, 938 (D.C. Cir. 2012).

TATEL, Circuit Judge, concurring: Although I concur fully

in the court’s opinion, I write separately to elucidate my

thinking about the important and novel separation-of-powers

question this case presents. The Secretary’s argument that

Section 214(d) is unconstitutional turns on two subsidiary

arguments: first, that the power to recognize foreign sovereigns

belongs to the President alone; and second, that Section 214(d)

interferes with the President’s exclusive exercise of that power.

But I think it best to begin with an issue that underlies and helps

frame these recognition power questions, namely, Congress’s

so-called passport power.

I.

It is beyond dispute that Congress’s immigration, foreign

commerce, and naturalization powers authorize it to regulate

passports. See Court’s Op. at 31–34; Secretary’s Br. at 45–46

(acknowledging that “Congress . . . has the constitutional

authority to generally regulate the form and content of passports

in furtherance of its enumerated powers”). Zivotofsky would

have us stop there. He reasons that because Congress has the

power to regulate passports and because Section 214(d) is

passport legislation, the statute is constitutional. This argument,

however, overlooks the independent limitations the Constitution

imposes even on legislation within Congress’s enumerated

powers. That is, a statute that Congress would otherwise have

authority to enact may still run up against some independent

restriction on its power. For example, the Commerce Clause

authorizes Congress to regulate interstate communications, but

a communications statute may nevertheless run afoul of the

First Amendment. See, e.g., Reno v. ACLU, 521 U.S. 844

(1997) (holding that anti-indecency provisions of the

Communications Decency Act violated the First Amendment).

The fact that Congress has affirmative authority to regulate

passports thus does not resolve the question of whether Section

214(d) comports with the separation of powers. It does,

2

however, help frame the quite narrow constitutional question

we must answer. Congress has authority to regulate passports;

we need only decide whether this particular exercise of that

authority, Section 214(d), infringes on the Executive’s

recognition power.

II.

As I noted at the outset, in order to demonstrate that

Section 214(d) is unconstitutional the Secretary must begin by

establishing that the recognition power in fact inheres

exclusively in the President. This is because, as the court

explains, see Court’s Op. at 11–12, a President may “take[ ]

measures incompatible with the expressed . . . will of Congress”

only when he acts pursuant to an “exclusive” Executive power.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38

& n.4 (1952) (Jackson, J., concurring). If the Constitution

entrusts the recognition power exclusively to the President, as

the Secretary claims, there remains the even more difficult

question of whether Section 214(d) intrudes upon his exercise

of that power. In resolving both questions, we find ourselves in

relatively uncharted waters with few fixed stars by which to

navigate.

A.

I have little to add to the court’s thorough discussion of

whether the Constitution endows the President with exclusive

power to recognize foreign sovereigns. As the court details,

there is scant constitutional text to guide us and little

contemporaneous evidence of the Framers’ intent. See Court’s

Op. at 14–17. Moreover, although the court thoroughly recounts

the historical precedents each side marshals in support of its

position, see id. at 17–22, the most striking thing about this

retelling is what is absent from it: a situation like this one,

where the President and Congress disagree about a recognition

3

question. To be sure, throughout our history Congress has often

acquiesced in a President’s unilateral recognition of a foreign

sovereign. See, e.g., id. at 17–18 (detailing President George

Washington’s recognition of France’s post-revolutionary

government). And on a few occasions, a President has

voluntarily coordinated with Congress regarding a recognition

decision. See, e.g., id. at 21–22 (pointing to President Abraham

Lincoln’s request that Congress endorse his recognition of

Liberia and Haiti). But neither party (nor any of the amici)

points to any time in our history when the President and

Congress have clashed over an issue of recognition.

Given all that, it is unsurprising that the Supreme Court has

had no occasion to definitively resolve the political branches’

competing claims to recognition power. True, the Court has

consistently and clearly stated that courts have no authority to

second-guess recognition decisions. See, e.g., Williams v.

Suffolk Insurance Co., 38 U.S. 415, 420 (1839). And in so

doing, it has often referred to the recognition power as inhering

exclusively in the Executive. See, e.g., Banco Nacional de Cuba

v. Sabbatino, 376 U.S. 398, 410 (1964) (“Political recognition

is exclusively a function of the Executive.”). That said, the

Court has also occasionally suggested that Congress and the

President share that power. See, e.g. Jones v. United States, 137

U.S. 202, 212 (1890) (“Who is the sovereign . . . of a territory,

is not a judicial, but a political, question, the determination of

which by the legislative and executive departments . . .

conclusively binds the judges . . . .”). Significantly for our

purposes, the Court has made many more statements falling in

the former category than in the latter. But still and again, the

Court has never squarely resolved the precise question we face

today.

To say that the question has yet to be conclusively

answered, however, is not to say—at least from the

4

perspective of this “inferior” court—that the answer is

unclear. All told, given the great weight of historical and legal

precedent and given that “carefully considered language of

the Supreme Court, even if technically dictum, generally must

be treated as authoritative,” United States v. Oakar, 111 F.3d

146, 153 (D.C. Cir. 1997) (internal quotation marks omitted),

we are compelled to conclude that “[p]olitical recognition is

exclusively a function of the Executive,” Sabbatino, 376 U.S.

at 410. Indeed, all three of our colleagues who considered this

question the last time this case was before us agreed. See

Zivotofsky v. Secretary of State, 571 F.3d 1227, 1231 (D.C.

Cir. 2009), vacated and remanded by Zivotofsky v. Clinton,

132 S. Ct. 1421 (2012); id. at 1240 (Edwards, J., concurring).

To hold otherwise, we would have to disregard not only their

considered views, but also the Supreme Court’s repeated

statements to the same effect, see e.g., Goldwater v. Carter,

444 U.S. 996, 1007 (1979) (Brennan, J., dissenting) (“Our

cases firmly establish that the Constitution commits to the

President alone the power to recognize, and withdraw

recognition from, foreign regimes.” (citing Sabbatino, 376

U.S. at 410; Baker v. Carr, 369 U.S. 186, 212 (1962); United

States v. Pink, 315 U.S. 203, 228–30 (1942))), as well as

centuries of largely consistent historical practice, see Court’s

Op. at 17–22. Moreover, in light of the President’s “primary

responsibility for the conduct of our foreign affairs,” New

York Times Co. v. United States, 403 U.S. 713, 741 (1971),

locating the recognition power in the Executive branch

conforms to our broader constitutional design.

5

B.

The critical question, then, is whether Section 214(d) in

fact infringes on the President’s exclusive authority to

recognize foreign sovereigns. The Secretary’s position is

straightforward: By preventing passport holders from

identifying a place of birth that conflicts with the President’s

recognition determinations, the Secretary’s place-of-birth policy

implicates recognition. This is all the more evident in the

context of Jerusalem. As Judge Edwards put it, “The

Secretary’s rules regarding the designation of Jerusalem on

passports . . . plainly implement the Executive’s determination

not to recognize Jerusalem as part of any sovereign regime.”

Zivotofsky, 571 F.3d at 1241–42 (Edwards, J., concurring).

Given that the Secretary’s place-of-birth policy implicates the

recognition power and given that Section 214(d) displaces that

policy, the Secretary reasons, the statute unconstitutionally

intrudes on the President’s recognition power.

Zivotofsky sees things differently. His first and broadest

contention is that the President’s recognition power, even if

exclusive, does not include the power to determine whether

certain territory belongs to a particular foreign state. The

recognition power may give the President authority to decide

whether to recognize a foreign entity as a sovereign, he argues,

but it includes no authority to determine that sovereign state’s

territorial boundaries. This line of argument falls well short of

its mark. The power to recognize a sovereign state’s territorial

boundaries is a necessary corollary to the power to recognize a

sovereign in the first place. For instance, recognizing an

established sovereign’s former colony as a new, independent

sovereign seems a straightforward exercise of what even

Zivotofsky would concede to be the recognition power. But

such recognition necessarily entails a boundary determination—

the colony, once formally recognized as part of one sovereign’s

territory, is effectively recognized as belonging to another.

6

Indeed, precedent binding on this court confirms that the

recognition power includes authority to determine territorial

boundaries. See, e.g., Baker, 369 U.S. at 212 (“[T]he judiciary

ordinarily follows the executive as to which nation has

sovereignty over disputed territory . . . .”); Pink, 315 U.S. at

229–30 (holding that the recognition power is “not limited to a

determination of the government to be recognized,” but rather

includes the power to take actions without which “the power of

recognition might be thwarted”); Williams, 38 U.S. at 420

(“[W]hen the executive branch of the government . . . assume[s]

a fact in regard to the sovereignty of any island or country, it is

conclusive on the judicial department[.]”).

Zivotofsky’s narrower argument, powerfully developed in

amicus briefs submitted by members of Congress and the Anti-

Defamation League, is much stronger. Letting Jerusalem-born

individuals choose to designate “Israel” as their place of birth,

he contends, neither effects a recognition of Israel’s sovereignty

over Jerusalem nor otherwise interferes with the President’s

recognition power. As he emphasizes, nothing in Section 214(d)

requires the Secretary to list “Israel” as the place of birth for all

Jerusalem-born U.S. citizens. Rather, it merely enables those

Jerusalem-born citizens who support Israel to choose to

designate their place of birth consistently with that view. Aside

from the Secretary’s say-so, Zivotofsky goes on to argue, there

is simply no reason to conclude that the statute’s limited

interference with the way the Secretary records a passport

holder’s place of birth implicates the recognition power. Nor is

there reason to believe that implementing Section 214(d) would

adversely affect foreign policy. Because affected passports

would list “Israel”—not “Jerusalem, Israel”—observers would

discern no U.S. policy identifying Jerusalem as part of Israel.

What makes this case difficult is that Zivotofsky is partly

right. As the Secretary concedes, see Secretary’s Br. at 53 n.13,

7

a primary purpose of the place-of-birth field is to enable the

government to identify particular individuals—e.g., by

distinguishing one Jane Doe from another born the very same

day. And the fact that the Secretary permits individuals to

choose to list a city or area of birth instead of a country of birth

does tend to suggest that its place-of-birth policy is also about

personal identity.

That the Secretary’s policy is about identification and

personal identity, however, does not mean that it does not also

implicate recognition. In fact, it clearly does. Over the years,

the Secretary has been incredibly consistent on this point: in no

circumstances—including circumstances beyond the Jerusalem

issue—can an individual opt for a place-of-birth designation

inconsistent with United States recognition policy. See 7 FAM

1383.5–1383.7. For example, because the United States never

recognized the Soviet Union’s annexation of Latvia, Lithuania,

and Estonia, the Secretary “did not authorize entry of ‘U.S.S.R.’

or the ‘Soviet Union’ as a place of birth” for people born in

these areas. 7 FAM 1340 Appx. D. Zivotofsky identifies no

deviation from this policy, nor am I aware of one. The Taiwan

directive to which Zivotofsky repeatedly points only

underscores the Secretary’s consistency. Because the United

States recognizes Taiwan as an area within China, permitting

individuals to list “Taiwan” as their place of birth comports

with the Secretary’s general policy. Moreover, one cannot

possibly read the Foreign Affairs Manual’s application of that

policy to Jerusalem as anything but an attempt to maintain

consistency between the place-of-birth field and the President’s

decision to recognize no sovereign’s claim to that city.

That the Secretary accommodates identity preferences to

the extent they are consistent with recognition policy does little

to undermine his position that the place-of-birth field in fact

implicates recognition. The Secretary has consistently walked a

8

careful line, permitting individual choice where possible while

still ensuring consistency with foreign policy. Because the

Secretary’s policy is about both identification and recognition,

Congress could probably pass some laws about the place-ofbirth

field that do not interfere with the recognition power. For

instance, Congress might be able to do little things, like require

that the place of birth be listed in a particular font. It might even

be able to do bigger things, like eliminate the place-of-birth

field all together. Although doing so would inhibit

identification of passport holders, it would not seem to interfere

with the President’s recognition power.

But in enacting Section 214(d), Congress did intrude on the

recognition power. The statute seeks to abrogate the Secretary’s

longstanding practice of precluding place-of-birth designations

that are inconsistent with U.S. recognition policy. According to

the Secretary, Section 214(d) would also have consequences for

the President’s carefully guarded neutrality on the question of

Jerusalem. Although Zivotfosky challenges the President’s

judgment that adverse foreign policy consequences would flow

from implementing Section 214(d), he offers no reason why the

President’s exercise of his constitutional power to recognize

foreign sovereigns should hinge on a showing of adverse

consequences. Even more importantly, courts are not in the

business of second-guessing the President’s reasonable foreign

policy judgments, cf., e.g., Chicago & Southern Air Lines, Inc.

v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948), and this one

is perfectly reasonable. After all, “[a] passport is, in a sense, a

letter of introduction in which the issuing sovereign vouches for

the bearer.” Haig v. Agee, 453 U.S. 280, 292 (1981). And it is

certainly plausible, as the Secretary insists, that Americanissued

passports listing “Israel” as the place of birth for

Jerusalem-born citizens could disrupt decades of considered

neutrality on the Jerusalem question.

9

If this were all we had—only the Secretary’s reasonable

judgment that Section 214(d) infringes on the Executive’s

exclusive recognition power—it might well be enough. After

all, the Supreme Court has held that the recognition power

“includes the power to determine the policy which is to govern

the question of recognition.” Pink, 315 U.S. at 229. But there is

more. As it turns out, this is not a case in which we must choose

between the President’s characterization of a statute as

implicating recognition and Congress’s contrary view. Indeed,

Congress was quite candid about what it was doing when it

enacted Section 214(d). That subsection is part of a provision

titled “United States policy with respect to Jerusalem as the

capital of Israel.” Foreign Relations Authorization Act, Fiscal

Year 2003, Pub. L. No. 107-228 § 214, 116 Stat. 1365 (2002).

The other sections under that heading are not about passports,

they are about recognizing Jerusalem as part of—indeed, as the

capital of—Israel. See id. And the legislative history makes

doubly clear that recognition was Congress’s goal. See H.R.

Conf. Rep. No. 107-671, at 123 (Sept. 23, 2002) (explaining

that Section 214 “contains four provisions related to the

recognition of Jerusalem as Israel’s capital” (emphasis added));

see also Court’s Op. at 36–37 (highlighting similar statements

by various members of Congress).

So in the end, this is a separation-of-powers dispute in

which both branches involved in the struggle actually agree.

Congress intended Section 214(d) to alter recognition policy

with respect to Jerusalem, and the President sees it the same

way. Our decision makes us the third and final branch to reach

this conclusion. And because the recognition power belongs

exclusively to the President, that means Section 214(d) is

unconstitutional.

10

III.

Although the foregoing analysis largely resolves this

case, there is one loose end I think merits mention:

Zivotofsky’s argument that the Secretary’s place-of-birth

policy discriminates against supporters of Israel. In its most

effective formulation, I take the point as follows: Under the

Secretary’s policy, supporters of Palestine born in Tel Aviv

can use their passports to signal their rejection of Israel’s

claim to sovereignty by choosing to list “Tel Aviv” instead of

“Israel” as their place of birth. By contrast, supporters of

Israel born in Jerusalem cannot use their passports to signal

their view that Jerusalem is part of Israel. Thus, the policy

discriminates against Israel supporters, and Section 214(d)

remedies that discrimination.

To the extent this is an independent claim that the

Secretary’s policy is discriminatory, I agree it is waived. See

Court’s Op. at 41. To the extent the argument is that Section

214(d) is constitutional because it remedies unlawful

discrimination, such argument cannot overcome the

recognition power problem for the same reason the passport

power argument cannot: legislation Congress would otherwise

have authority to enact may still run afoul of an independent

constitutional restraint on congressional action.

I nonetheless think it important to note that the policy is

not discriminatory. Indeed, unlike Section 214(d), which

permits Jerusalem-born Israel supporters to list “Israel” as

their place of birth but allows no parallel option for

Jerusalem-born Palestine supporters, the State Department’s

Foreign Affairs Manual establishes a facially neutral policy

that permits individuals to list their city or area of birth in lieu

of their country of birth. See 7 FAM 1383.5-2; 7 FAM

1383.6(a). The policy applies universally—not just in the

context of Jerusalem—and treats Israel and Palestine

11

supporters identically. Jerusalem-born Americans, whether

supporters of Israel or supporters of Palestine, may not use

their passports to make a political statement. And that is

because permitting a Jerusalem-born individual to list “Israel”

or “Palestine” would contradict the President’s decision to

recognize neither entity’s sovereignty over Jerusalem.

True, as Zivotofsky emphasizes with his Tel Aviv

example, individuals born within territory the United States

has recognized as belonging to Israel can choose either to list

“Israel” as their place of birth or instead to list a city or area

of birth. Israel supporters may list “Israel,” and Palestine

supporters may list something more specific. But although the

political nature of the latter choice may be clearer insomuch

as it marks a deviation from the default country-of-birth rule,

that is an unintended consequence of a neutral policy. Indeed,

were the United States to recognize the West Bank as the

sovereign state of Palestine, the same would be true of Israel

supporters born therein. That is, Palestine supporters could list

“Palestine,” and Israel supporters could make the more

obviously political choice to list their city or area of birth. It is

only because the United States has not recognized any

Palestinian territory that there currently exists no clear

analogy to Zivotofsky’s Tel Aviv scenario.

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