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06/08/2015

Originalism in Zivotofsky v. Kerry
Michael Ramsey

Today's opinion in Zivotofsky v. Kerry found unconstitutional Congress' requirement that U.S. citizens born in Jerusalem be able to have their passports reflect birth in Israel.  (Majority by Justice Kennedy; partial concurrence, partial dissent by Justice Thomas; dissent by Chief Justice Roberts; dissent by Justice Scalia, joined by Roberts and Alito).

Jack Goldsmith at Lawfare thinks the opinion is a significant victory for the executive branch. I'm not so sure; the majority opinion is written narrowly and tightly focused on the President's exclusive recognition power (wrongly, in my view).  

I'll have an invited comment at SCOTUSblog posted shortly.  My brief takeaway is that Justice Thomas' concurrence has the right approach: the President wins because Congress does not have power to establish "United States Policy with Respect to Jerusalem as the Capital of Israel," as the statute's title purports to do (see 116 Stat. 1365).  Deciding U.S. policy with respect to whether or not Jerusalem is part of Israel does not have anything to do with receiving ambassadors, but it is part of the President's diplomatic power.  That power isn't exclusive as to things over which Congress also has power, but here Congress lacks an enumerated power.  Thomas relies on extensive originalist materials in support to this framework (persuasively, in my view).

Justice Scalia's dissent is also originalist but in my view is far too lax in policing Congress' enumerated powers.  He argues that Congress can insist on "Israel" in the passport of a Jerusalem-born citizen because "[t]he birthplace specification promotes the document’s citizenship authenticating function by identifying the bearer, distinguishing people with similar names but different birthplaces from each other, helping authorities uncover identity fraud, and facilitating retrieval of the Government’s citizenship records."  But this is an imagined function; as the title of the provision makes clear, the point is to make a statement, not to facilitate recordkeeping.  And the provision allows but does not require inclusion of "Israel" (at the passport-holder's option), further underscoring that the provision's role is symbolic, not administrative.

The majority opinion by Justice Kennedy ranges over precedent, practice, recent history, and functional needs, but also devotes substantial attention to immediate post-ratification understandings (with a much appreciated cite to my article with Sai Prakash on executive foreign affairs power, albeit to the part Prakash mostly wrote).

At Opinio Juris, there are further comments on the case from Julian Ku, Peter Spiro (who thinks, perhaps optimistically, that the opinion is the end of Curtiss-Wright) and Deborah Pearlstein.

And Josh Blackman has extensive excerpts from the opinions and his commentary here.