Zivotofsky v. Kerry - Post-Decision SCOTUScast

On June 8, 2015, the Supreme Court decided Zivotofsky v. Kerry. This case concerns Section 214(d) of the Foreign Relations Authorization Act of 2003, which directs the Secretary of State, upon request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport. The question before the Court is whether the D.C. Circuit erred in holding Section 214(d) an unconstitutional infringement on the President’s power to recognize foreign sovereigns.

In an opinion delivered by Justice Kennedy, the Court affirmed the judgment of the D.C. Circuit by a vote of 6-3 as to passports and 5-4 as to consular reports.  The power to recognize foreign governments, the Court held, rests solely with the President.  Because Section 214(d) would require the President to contradict his prior recognition determination in an official document issued by the Secretary of State, the Court explained, Section 214(d) is unconstitutional.

Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. Chief Justice Roberts filed a dissenting opinion, which Justice Alito joined. Justice Scalia filed a dissenting opinion, which Chief Justice Roberts and Justice Alito joined. 

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To discuss the case, we have Mr. Steven Bradbury, who is a Partner at Dechert.