Supremes Give Nod to Executive Power with Foreign Nations

The U.S. Supreme Court handed down a 6-3 decision to Zivotofsky v. Kerry this week. The precedent it sets may be much more impactful than originally thought. It may have set the stage for an unprecedented expansion of executive power over foreign affairs.

The case concerned the plight of Americans born in the city of Jerusalem who have petitioned that Israel be listed as their place of birth. Palestine and Israel have an ongoing dispute over which nation has the rightful claim to use the city as it’s capital.

President George W. Bush prevented the State Department from issuing passports that indicated Israel as a place of birth for Jerusalem-born Americans. He had hoped the U.S. could continue to play the impartial broker in decades-long peace negotiations between the two nations.

After President Obama continued the policy, plaintiffs appealed on behalf of a 2002 law from Congress which essentially overrode the executive policy and permitted the listing of Israel. The Supreme Court ruled the law was unconstitutional and struck it down.

The split in the court’s decision came along usual ideological lines with the four liberal justices joining Anthony Kennedy in favor of the State Department. However, the sixth vote came as a surprise when Clarence Thomas sided with the majority decision. Though he didn’t agree with the majority’s reasoning, he exposed a sharp disagreement between himself and his conservative colleagues.

In Kennedy’s opinion for the majority, the court argued that the U.S. should have a ‘single voice’ on foreign affairs. This voice should be the president’s alone: power implied by the authority in the constitution to ‘receive ambassadors and other public ministers.’