Oral arguments in Zivostofsky v. Kerry, the Jerusalem passport case, will be heard on Nov. 3. Alan Gura and I authored an amicus brief in support of the petitioner on behalf of a group of ideological diverse constitutional law professors and a human rights group.
Here I will summarize our position, and then point to an argument in the brief apparently note made by other parties or amici.
Our central argument is that the passport law does not involve any act of recognition of a foreign country of government, a point also touched on in the Senate’s amicus brief. Further, Congress can, on on innumerable occasions has, exercised its enumerated powers in relation to unrecognized countries. When Congress names places as part of exercising these powers – whether to declare war on them, fund them, trade with them, or as here, identify people who come from them – it does not perform an act of recognition. (The House’s amicus brief makes related points, and they are worth reading together, as both briefs list some important examples of such legislation that the other does not.) Thus the Court need not decide any constitutional question about the scope of the recognition power.
Remarkably, the Executive Branch itself places Jerusalem in Israel for geographic identification purposes. The U.S. Board of Geographic Names, a part of the Interior Department. Its statuary purpose is to “provide for uniformity in geographic nomenclature… throughout the Federal Government.” Members of the board include, inter alia, officials from the State, Defense, and Homeland Security Departments, and the CIA.
According to the “foreign-place names decisions approved by” the Board, Jerusalem is a city in “Israel” (with the “unique name identifier” of 13535646). To be sure, the homepage of the Board’s names database prominently advises that (emphasis in original):
The geographic names in this database are provided for the guidance of and use by the Federal Government and for the information of the general public. The names, variants and associated data may not reflect the views of the United States Government on the sovereignty over geographic features.
This is important for two reasons. Firstly, if the Executive Branch’s official agency for determining what is where can call “Jerusalem” a city in “Israel” without accomplishing a recognition, it is hard to understand why Congress’s designation on a passport would do so. Second, the BGN names things “for the guidance and use” of the government, so as to have uniform names and locations understandings. Congress followed the Executive’s own “guidance” and “information” with the passport law. Using the official designation promulgated by the Executive branch can hardly be a ground for invalidating a statute on separation of powers grounds.
After filing the brief, Prof. Ryan Scoville pointed out that many federal judicial opinions refer to Jerusalem as being in Israel. Even the prolonged, high-profile litigation of the “Israel” question in Zivotosfky has not discouraged such references. The practices covers six courts of appeals [examples include, 22 F.3d 677 (5th Cir. 2013); 637 F.3d 783 (7th Cir. 2011); 604 F.3d 915 (6th Cir. 2010); 784 F.2d 176 (3d Cir. 1986); 659 F.2d 234 (D.C. Cir. 1981); 358 F.2d 119 (2d Cir. 1966)] and dozens of district court opinions.
If referring to Jerusalem as being in Israel is an act of recognition or a direct engagement in foreign relations, then such action by the judiciary would be even more obnoxious to the separation of powers than by Congress, which has some acknowledged role in foreign affairs. But the reason the Executive has acquiesced in this judicial practice is that such action is not a recognition.
Rather, the judiciary has the constitutional power to decide cases. By tradition, this involves issuing written opinions. Those opinions may have to mention places, and in doing so, the court can identify their national location to the best of their lights.