SCOTUS Sides With Obama (And Bush) in Fight Over Israeli Passports

The Court said Congress overstepped when it told the State Department what to say on passports.

On Friday, the Supreme Court is meeting in closed conference to decide whether it will take up cases on the issues of same sex-marriage and marriage recognition from several states. (Drew Angerer/Getty Images) (National Journal)

The Supreme Court on Monday said Congress overstepped its bounds when it tried to force the president's hand in a hot-button dispute over the Middle East.

In a 6-to-3 ruling, the Court struck down a 2002 law that required the State Department to identify Jerusalem as a part of Israel on certain passports. Both the George W. Bush and Barack Obama administrations had refused to follow that law, saying it was an unconstitutional incursion on presidential power—and they were right, the Court said on Monday.

But most of the Court's conservative wing disagreed, arguing that the ruling will upend the basic separation of powers between Congress and the president.

"Today's decision is a first: Never before has this Court accepted a president's direct defiance of an act of Congress in the field of foreign affairs," Chief Justice John Roberts said in a dissenting opinion.

The case, Zivotofsky v. Kerry, is about the president's power to make foreign policy decisions—or to avoid making them.

When a child born in Jerusalem gets a U.S. passport, the place of birth is listed simply as "Jerusalem"—without a country. Since the Truman administration, the United States has not recognized either Israeli or Palestinian sovereignty over Jerusalem, preferring instead to stay on the sidelines of that debate.

Recognizing Jerusalem as a part of Israel would "would critically compromise the ability of the United States to work with Israelis, Palestinians, and others in the region to further the peace process," the government said in a brief to the Supreme Court.

But Congress tried to force the State Department's hand, at least when it comes to passports. Its 2002 law said that if U.S. citizens born in Jerusalem wanted their passports to say they were from Israel, the State Department had to oblige.

Justice Anthony Kennedy, writing for the Court's majority on Monday, said the requirement infringed on the president's power to decide which countries the United States will recognize. That power lies solely with the executive—not Congress—he said, and it extends to official government documents like passports.

"Recognition is an act with immediate and powerful significance for international relations, so the president's position must be clear," Kennedy wrote. "Congress cannot require him to contradict his own statement regarding a determination of formal recognition."

Kennedy's opinion concedes, however, that printing "Israel" on a passport is not an official recognition that Israel controls Jerusalem.

Even if the president does have sole power over recognizing countries, Justice Antonin Scalia wrote in a dissenting opinion, "it is a leap worthy of the Mad Hatter" to assume that also means the president doesn't have to follow Congress's directives on passports.

"The annals of diplomatic history record no examples of official recognition accomplished via optional passport designation," Roberts wrote in his dissent.

But the same rules apply, the majority said, because forcing the State Department to print "Israel" on passports would effectively require the executive branch to publicly disagree with itself.

"That congressional command would not only prevent the nation from speaking with one voice but also prevent the executive itself from doing so in conducting foreign relations," Kennedy wrote for the court.

Roberts and Scalia—as well as Justice Samuel Alito, who joined Scalia's dissent but did not write one of his own—saw the ruling as an unprecedented power grab for the presidency.

"Functionalism of the sort the Court practices today will systematically favor the unitary president over the plural Congress in disputes involving foreign affairs. ... It is certain that, in the long run, it will erode the structure of separated powers that the people established for the protection of their liberty," Scalia wrote.