Publication Date

2015

Publication Title

American Journal of International Law

Abstract

The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”1 Both the Bush Administration and the Obama Administration declined to comply with this statutory directive. In Zivotofsky v. Kerry(Zivotofsky II), the Supreme Court sided with the executive branch, holding that Section 214(d) unconstitutionally interferes with the exclusive authority of the President to recognize foreign sovereigns.2

The focus of this essay is on the Court’s methodology rather than its conclusion. In particular, the focus is on the Court’s reliance on the historic practices of Congress and the executive branch in support of the Court’s finding of an exclusive presidential recognition power. Reliance on such practice—also known as “historical gloss”—is common in constitutional interpretation relating to the separation of powers. For a variety of rea-sons, however, there are unlikely to be many instances in which historical practice will clearly establish an exclusive presidential power. In Zivotofsky II, the relevant practice provided clear support only for a power of recognition and was ambiguous about whether this power was concurrent or exclusive. The Court’s assessment of the practice, therefore, appears to have been affected by other considerations, such as the Court’s perception about the consequences of adopting a particular interpretation. This is not necessarily an indictment, given that a similar dynamic often characterizes other aspects of constitutional interpretation, including textual analysis. It is probably fair to say, however, that whereas in some cases historical practice shapes perceptions about other interpretive materials, in Zivotofsky II the principal direction of influence was the other way around. The decision also highlights tensions between a custom-based approach to the separation of powers and the institution of judicial review, tensions that are potentially relevant both to the proper scope of justiciability doctrines as well as to the way in which judicial decisions are best formulated.

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