The Jerusalem Passport Case – Separation of Powers and Standing

The D.C. Circuit has held the Jerusalem passport law unconstitutional for impermissibly intruding into the Executive’s foreign relations powers. The law requiring the State Department to record “Israel” as the country of birth for those born in Jerusalem. The D.C. Circuit, through extensive and lucid analysis, concluded that recognition was an exclusively executive function, on which the Act impinges. The lawsuit, brought by Menachem Zivotofsky, an American born in Jerusalem, has gone on for a decade, but this will probably be the end.

The D.C. Circuit’s separation of powers analysis was quite strong, though I think the case lacks standing, as Judge Gladys Kessler on the district court first ruled nine years ago.

The plaintiff, claimed the issue was just about passports, and did not involve recognizing foreign countries. The argument was hard to take seriously: refusing to recognize Israeli sovereignty over Western Jerusalem, on passports or elsewhere, is a crucial limitation on the U.S.’s recognition of the State of Israel.

More interesting was the plaintiff’s argument that Congress itself acted through an enumerated power – Immigration and Naturalization. The Court rather convincingly showed that passports were not central to this power, which in any case was concurrent with the Executive’s foreign policy powers. Thus in rock-paper-scissors terms, an exclusive executive power (recognition) beats a concurrent legislative one.

One might think that the Immigration power naturally overlaps with recognition: immigration requires a prior determination of foreignness. The Executive has never taken a position one way or another the sovereignty over Jerusalem. Heck, it might be part of New York, in which case no immigration or naturalization would be needed. Indeed, because of the particular circumstances here – Congress is not contesting a determination of Jerusalem’s status, but rather a non-determination – one might think Congress cannot exercise its powers without such a determination. More broadly, immigration laws may allow different numbers of people to come from different countries, thus it would be essential to determine what country Jerusalem is in.

Two years ago, the Supreme Court, in M.B.Z. v. Clinton, rejected the D.C. Circuit’s dismissal of the case on political question grounds. I would have instead dismissed for lack of standing, as the district court originally did (before being reversed by the Court of Appeals; the district court then dismissed as a political question, which the Supreme Court ultimately reversed). The plaintiff has no injury. His passport is property of the State Department, he has no proprietary interest in its contents.

Rather, the passport is merely a vehicle to challenge a broader government policy. The D.C. Circuit, in reversing the standing dismissal, concluded that the law created an new, individual right to have “Israel” written in one’s passport. Such a legal right would satisfy standing, but there is little evidence that Congress created such a right. The statute instructs the State Department to “upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel”. This seems simply to specify the procedure by which “Israel” would be placed on the passport, rather than create a individual right. It is certainly less obviously a cause of action than procedural rights created under various administrative laws, where the Court has upheld standing (as in FEC v. Akins). Those at least specifically authorize lawsuits and speak of “aggrieved parties.” The provision in question looks more like an order to the administration, rather than the establishment of an individual right.

Indeed, I suppose the reason for the “upon the request” language was not to require those born in Jerusalem who might not want it described at “Israel” to be forced to bear such a description in their passports; that would also generate additional hostility and opposition to the rule. If anything, this is an individual right to NOT have “Israel” printed in one’s passport.

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