Faculty Blog, Federal Courts, Hansen, Judges, Passports

Faculty Blog: Recent Supreme Court Term: Zivotofsky v. Kerry

In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches. Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.