Photo Credit: Nathan Lewin
Nathan Lewin

After the 6-to-3 Supreme Court vote that invalidated Congress’ s 2002 law granting American citizens born in Jerusalem the right to have their passports show “Israel” as their place of birth, non-lawyers have asked me, “Can this decision be appealed?”

Obviously not. A majority of the Supreme Court has the last word on constitutional questions. Robert H. Jackson, a brilliant Supreme Court justice, famously said in a 1953 concurring opinion, “We are not final because we are infallible, but we are infallible only because we are final.”


Even in the constitutional-law arena, however, there is some comfort in knowing that the Supreme Court’s three intellectual heavyweights – Chief Justice Roberts and Justices Scalia and Alito – agreed with our constitutional argument and with our comprehensive summary of American history on the central question of whether the president has the exclusive power to recognize foreign sovereigns.

Justice Scalia called the majority’s decision “a rule that is blatantly gerrymandered to the facts of this case” and observed that “no consistent or coherent theory supports the Court’s decision.” The result that the majority strained to reach proves that feebleness overcomes even a majority of the Supreme Court and paralyzes them if they are told that their decision affects Jerusalem and may set off what Justice Elena Kagan, during oral argument of the case, called a “tinderbox.”

So the president is the only one who can constitutionally declare, on behalf of the U.S. government, that Jerusalem is in Israel. One obvious response to the Supreme Court’s ruling is to demand of all candidates for the 2016 election that they commit to American recognition of Jerusalem as within Israel. That would require the State Department’s Passport Office to permit anyone born in Jerusalem (for example at Shaare Zedek Hospital) to carry a passport declaring “Israel” as his or her “place of birth.”

The president’s declaration power is, as Justice Kennedy said on page 27 of his 30-page majority opinion, “quite narrow.” Kennedy added that this exclusive presidential power “extends no further than his formal recognition determination” and pointed out that while “Congress may not enact a law that directly contradicts” the president’s declaration, Congress is free to “express its disagreement with the President in myriad ways.” Kennedy’s majority opinion goes to great lengths to affirm and re-affirm the extensive authority Congress has over all aspects of foreign policy apart from the solitary act of recognition.

In a 1936 majority opinion, Supreme Court Justice George Sutherland said that the president is “the sole organ of the federal government in the field of international relations.” That overbroad statement has confounded constitutional scholars, and they have attacked it as plainly wrong. In its briefs in the Jerusalem passport case the government cited that case ten times. Justice Kennedy went out of his way to discuss it (as did Chief Justice Roberts in his dissent) and he said, “This Court declines to acknowledge that unbounded power.”

Rather, he said, the 1936 opinion “did not hold that the President is free from Congress’ lawmaking power in the field of international relations. . . . But whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.”

At the conclusion of his opinion for a Court majority, Kennedy observed that in invalidating the 2002 law “the Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular.” (The emphasis is mine.) In other words, Congress has broad authority to pass laws that relate to passports. Laws enacted by Congress concerning applications for passports and the issuance of passports appear in Title 22 of the United States Code.


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Nathan Lewin is a Washington lawyer who specializes in white-collar criminal defense and in Supreme Court litigation.
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