One of the noteworthy disagreements in Zivotofsky concerns the significance of foreign perceptions of U.S. law.
Latest in Zivotofsky
Much anticipated for any number of reasons, Zivotofsky was perhaps most awaited for the valuable contribution it was to make in the form of its analysis of the scope of exclusive executive power. This analysis was expected to begin to answer a key question lingering after Justice Jackson’s Youngstown concurrence.
Last year the Supreme Court, seized with a big constitutional question about foreign relations, feinted: Bond v. United States turned on rules of statutory interpretation rather than the constitutional balance between federalism and the treaty power. Fans of constitutional controversy, which centers attention on the Court in its self-assigned role as ultimate constitutional arbiter, may regret this move, although I do not.
In his famous Youngstown concurrence, Justice Jackson began by reflecting that:
The Supreme Court in Zivotofksy held that the President can disregard a statute that requires him to designate “Israel” on passports of U.S. citizens born in Jerusalem because the statute (Section 214 of the 2003 Foreign Relations Authorization Act) infringes on the President’s exclusive power to recognize foreign sovereigns.
The decision in Zivotofsky v. Kerry, a blockbuster foreign policy-related Supreme Court case that many of us have been watching carefully, was just released: The DC Circuit is affirmed. The President holds the exclusive power to recognize foreign sovereigns, and the relevant statute compelling the Executive to write "Israel" on relevant passports impermissibly infringed on this exclusive authority to determine the status of Jerusalem.
The Supreme Court recently granted certiorari in Spokeo v. Robins, a Fair Credit Reporting Act case which might appear to have little connection to national security and foreign relations law. But the case is about standing, in particular Congress’s power to confer standing on private parties who do not suffer an injury-in-fact but have been deprived of the legal rights created by the statute.
The Supreme Court granted cert. today in Zivotofsky v. Clinton. In that case the D.C. Circuit, on remand from the Supreme Court, held that Section 214(d) of the 2003 Foreign Relations Authorization Act, which requires the Secretary of State to record “Israel” as the place of birth on a U.S.