Zivotofsky v. Kerry
The Supreme Court ruled that only the President can decide which foreign governments the United States recognizes, and struck down a federal law that would have forced the State Department to list "Israel" as the birthplace of an American born in Jerusalem.
The decision settles a long-running dispute between Congress and the President over control of the recognition power, holding that lawmakers cannot force the Executive Branch to contradict its own official position on the disputed status of Jerusalem.
“If Congress may not pass a law, speaking in its own voice, that effects formal recognition, then it follows that it may not force the President himself to contradict his earlier statement.”
Explains why Congress cannot make the President contradict his own recognition decisions.
How it got here: A trial court dismissed the suit as a political question; the D.C. Circuit later ruled the law unconstitutional, and the Supreme Court took the case after an earlier remand on justiciability.
The Case in Depth
What happened
Menachem Zivotofsky was born in Jerusalem to American parents. A federal law let citizens born there ask that their passports list "Israel" as their birthplace. But the State Department, following a decades-old policy of neutrality on who controls Jerusalem, would only list "Jerusalem." Zivotofsky's parents sued to force the government to follow the law and print "Israel" instead.
The question before the Court
When a U.S. citizen is born in Jerusalem, can Congress force the State Department to list "Israel" as the birthplace on his passport, against the President's wishes?
The Court's answer
No — the Court ruled that Congress cannot force the President to list "Israel" as the birthplace for citizens born in Jerusalem, because the Constitution gives the President alone the power to decide which foreign governments and territorial claims the United States recognizes. Since the 1940s, U.S. Presidents have deliberately refused to say who controls Jerusalem, and the Court held that this recognition power includes the right to keep making that same statement through official documents like passports.
Requiring the Secretary of State to print "Israel" would have forced the Executive Branch to contradict its own considered position, effectively letting Congress exercise the President's recognition power for him. The Court stressed its ruling was narrow — Congress still has broad authority over passports generally — but on this specific point, the President's determination controls.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling means passports for people born in Jerusalem will keep listing \"Jerusalem\" rather than \"Israel\" unless the Executive Branch changes its policy. More broadly, it gives future Presidents a stronger, court-backed claim to exclusive control over decisions about which foreign governments and territorial claims the United States formally recognizes, limiting Congress's ability to legislate around those decisions.
What changes now
This is a final merits decision, not a temporary order. The State Department will continue printing "Jerusalem," not "Israel," on passports for citizens born there unless the Executive Branch itself changes that policy. The ruling does not resolve the underlying international dispute over Jerusalem's status, which the Court expressly left to the political branches and international diplomacy.
What this does not decide
The Court stressed its ruling is narrow: it does not give the President unlimited power over all of foreign policy, and it does not question Congress's broad authority to legislate on passports generally. It resolves only whether Congress can force the Executive to contradict a specific, formal recognition determination.
Concurrences and dissents
Concurrence — Justice Breyer
Justice Breyer reiterated his longstanding view that this dispute is really a nonjusticiable political question the courts should stay out of entirely. He explained that he joined the majority only because the Court's earlier ruling in this same case already foreclosed deciding it on political-question grounds.
Dissent in part — Justice Thomas
Justice Thomas agreed the passport provision was unconstitutional, but on different grounds: he located presidential power over passports in the President's broad, unenumerated 'residual' foreign affairs powers under the Vesting Clause, not the recognition power. He argued the provision was constitutional, however, as applied to consular birth reports, because those documents fall within Congress's naturalization power rather than the President's foreign affairs authority.
Dissent — Justice Roberts
Chief Justice Roberts argued this was the first time the Court had ever let a President defy an Act of Congress in foreign affairs, and doubted the recognition power is truly 'exclusive' and 'conclusive.' He also argued that even if it were, the passport statute never actually touched recognition, since neither Congress nor the State Department treated it as a recognition decision.
Dissent — Justice Scalia
Justice Scalia argued that recognition is a specific, formal international-law act with legal consequences, and that a passport notation does nothing to create or withdraw that kind of commitment. He contended Congress has ample power under its naturalization and other enumerated powers to require the birthplace notation, and that the majority's rule was invented to fit this case rather than grounded in text, history, or precedent.
How the Court got there
The legal reasoning, step by step
- The Court applied Justice Jackson's three-category framework from a 1952 case for judging presidential power: when the President acts against Congress's wishes, his power is at its weakest, and he can act only on authority the Constitution gives him alone, not authority he shares with Congress.
- Because the passport law conflicted with the President's stated policy, the Court asked whether recognizing foreign governments is a power the Constitution gives exclusively to the President rather than one shared with Congress.
- Looking at the Constitution's text, the Court read the clause directing the President to 'receive Ambassadors' as also giving him the power to recognize foreign governments, since receiving an ambassador was historically understood as an act of recognition; this inference was reinforced by the President's sole ability to negotiate treaties and open diplomatic channels on his own initiative.
- The Court reasoned that the nation must speak with 'one voice' on which governments it recognizes, and that only the President has the constant, unified presence needed to make and maintain such determinations, unlike the multi-member Congress.
- Reviewing decades of prior cases and historical practice, the Court concluded that Presidents have consistently claimed this recognition power unilaterally and Congress has largely accepted that arrangement, treating a formal recognition determination — and the President's ability to maintain it in his own and his agents' official statements — as belonging to the President alone.
- Applying this rule, the Court found that forcing the Secretary of State to print 'Israel' on the passport of someone born in Jerusalem would require the Executive Branch to contradict its own longstanding, deliberate position of neutrality over who controls the city, effectively letting Congress exercise the recognition power itself.
Doctrinal impact
Cases affected by this decision
Limits Curtiss-Wright (299 U. S. 304)
The Court rejected reading this case as giving the President unlimited, undefined power over all foreign affairs.
Reaffirms Youngstown Sheet & Tube Co. v. Sawyer (343 U. S. 579)
The Court relied on this case's three-category framework for evaluating presidential power against Congress's wishes.
Reaffirms Banco Nacional de Cuba v. Sabbatino (376 U. S. 398)
Cited as confirming that recognition is exclusively an Executive function.