Zivotofsky v. Kerry poses vexing issue on separation of powers

This week, the Supreme Court took up Zivotofsky v. Kerry, a complex case with political and diplomatic ramifications that has been through the court circuits before. In this particular situation, the ultimate decision on foreign policy should rest with the State Department, the issuer of passports and conductor of diplomatic relations across the world on behalf the of the United States.

The case centers around 12-year-old Menachem Zivotofsky, an American who was born in Jerusalem in 2002 and whose parents wish for Israel to be listed as his place of birth on his passport, rather than Jerusalem. According to a 2002 law signed by then-President George W. Bush, citizens born in Jerusalem can have Israel listed as their place of birth on their passports, if they so requested. The stipulation was a provision in a larger appropriations bill, and the Bush administration opposed that specific provision, as has the subsequent Obama administration. The issue at play is whether allowing Israel to be listed, thereby recognizing Jerusalem as within the territory of Israel, would indicate a marked shift in U.S. foreign policy. Regardless of the side the justices take, the larger question is which branch of government has the jurisdiction to rule on foreign policy.

The question brought to the Supreme Court by the Zivotofsky case should not be decided in terms of dictating policy. The duty of the Supreme Court should be to rule on matters of constitutionality and not appraise a law as good or bad policy.

In 2002, Congress supported passports reading “Israel” for citizens born in Jerusalem, but the State Department has continually objected to such a policy. Recognizing Jerusalem as part of Israel would have far-reaching diplomatic and political implications that would compromise the United States as a mediator and broker of peace within the larger Israeli-Palestinian conflict. The State Department’s stance remains cognizant of the current “tinderbox” situation in Jerusalem, as Associate Justice Elena Kagan called it.

Many, including Justice Anthony Kennedy, argue that allowing Israel on passports would not necessarily mark a departure in American policy. On the contrary, such a policy would imply the U.S. recognition of Jerusalem as part of the state of Israel, which is disputed by Palestinians.

Justice Kennedy argued for a compromise, inserting a statement indicating that the birthplace designation is not a declaration “that Jerusalem is within the borders of the state of Israel.” Passports, however, are documents authorized and issued by the State Department of the U.S. government, and a birthplace designation would indicate a certain diplomatic recognition of Israel’s control of Jerusalem.

The Supreme Court, as it traditionally does, should rule the question brought by the case with a narrowly tailored approach. It also needs to remain aware that its ruling not only affects the Israeli-Palestinian conflict, but also implicates the role and power of each branch of government. If the Court rules that Congress was within its reach with regard to the 2002 law, then in what instances does the State Department trump Congress and vice versa? In addition, if the Supreme Court itself rules on the matter, it would make it culpable of the unconstitutionality it claims of Congress.

The Zivotofsky v. Kerry case requires a multi-faceted approach by the Supreme Court that carefully steers it toward ruling that the power of foreign policy resides with the executive branch in the State Department. The broader real-world ramifications are important to consider as well because of the unique circumstances surrounding the issue.
Athanasius Georgy is a sophomore majoring in biological sciences. His column, “On the World Stage,” runs Thursdays.