The U.S. Supreme Court issued its decision in Zivotofsky v. Kerry today, involving a conflict between Congress and the President as to which branch may give signals of recognition to foreign states. The Court held, by a 6-3 vote, that the President has the power to determine whether and when to recognize foreign states without Congressional interference. Although more a case involving U.S. foreign policy than international law, Zivotofsky does have international implications.
By way of background, the US State Department, under the direction of US presidents, normally issues passports that identify a person's place of birth. In this case, Menachem Zivotofsky was born in Jerusalem in 2002. His US citizen parents asked the State Department to list his place of birth as Israel. The US State Department refused, because the US does not take an official position as to whether Jerusalem belongs to Israel. However, the US Congress passed a statute that would allow a person person born in Jerusalem to have Israel listed as the place of birth on a US passport. The President contended that the law unconstitutionally interfered with his power to determine whether and when to recognize foreign states or any part thereof.
The majority of the Supreme Court agreed with the President, finding that the statute does unconstitutionally interfere with the President's exclusive power to recognize foreign sovereigns. The Court based its decision on the text and structure of the US Constitution as well as historical practice. This case is noteworthy as a matter of US law because the President has few powers that are considered "exclusive" to the executive branch such as the President may oppose Congress. It is also noteworthy in that it avoids a potentially embarrassing situation wherein the US government could be divided as to its foreign policy respecting Jerusalem and Israel, a particularly delicate matter of negotiation in Middle Eastern politics.
(cgb)