Zivotofsky v. Secretary of State

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2008 Decided July 10, 2009

No. 07-5347

ARI Z. ZIVOTOFSKY, M.B.Z. BY HIS PARENTS AND GUARDIANS
AND NAOMI SIEGMAN ZIVOTOFSKY, M.B.Z. BY HIS PARENTS
AND GUARDIANS,
APPELLANTS

v.

SECRETARY OF STATE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 03cv01921)

Nathan Lewin argued the cause for appellants. With him
on the briefs was Alyza D. Lewin.

Lewis Yelin, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Jeffrey A. Taylor, U.S. Attorney, and Douglas N. Letter,
Appellate Litigation Counsel. R. Craig Lawrence, Assistant
U.S. Attorney, entered an appearance.
 2
Before: GRIFFITH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Senior Circuit Judge
EDWARDS.

GRIFFITH, Circuit Judge: It has been the longstanding
policy of the United States to take no side in the contentious
debate over whether Jerusalem is part of Israel. In this case,
the federal courts are asked to direct the Secretary of State to
contravene that policy and record in official documents that
Israel is the birthplace of a U.S. citizen born in Jerusalem.
Because the judiciary has no authority to order the Executive
Branch to change the nation’s foreign policy in this matter,
this case is nonjusticiable under the political question
doctrine.

I.

That the United States expresses no official view on the
thorny issue of whether Jerusalem is part of Israel has been a
central and calibrated feature of every president’s foreign
policy since Harry S. Truman. See Br. for Appellee at 6; J.A.
at 57 (Defendant’s Responses to Plaintiff’s Interrogatories).
State Department policy governing how to describe the status
of Jerusalem in passports and Consular Reports of Birth1 of
U.S. citizens born there implements the presidential decision
1
A Consular Report of Birth is an official record of U.S. citizenship
for a person born abroad. See Application for a Consular Report of
Birth, http://www.state.gov/documents/organization/83127.pdf (“A
Consular Report of Birth may be issued for any U.S. citizen child
under age 18 who was born abroad and who acquired U.S.
citizenship at birth.”).
 3
to remain neutral. Although the State Department typically
records a passport holder’s birthplace as the nation with
sovereignty over his city of birth, see 7 U.S. DEP’T OF STATE,
FOREIGN AFFAIRS MANUAL § 1383.1, passports issued to U.S.
citizens born in Jerusalem note only the city, see id. § 1360,
app. D (“For a person born in Jerusalem, write JERUSALEM
as the place of birth in the passport. Do not write
Israel . . . .”). The State Department follows the same policy
for Consular Reports of Birth. See Br. for Appellee at 9.

In 2002, Congress passed the Foreign Relations
Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228,
116 Stat. 1350 (2002) (codified at 22 U.S.C. § 2651 note
(2006)). Section 214 of the Act, entitled “United States Policy
with Respect to Jerusalem as the Capital of Israel,” challenges
the Executive’s position on the status of Jerusalem. Id. § 214,
116 Stat. at 1365. Subsection 214(a), for example, “urges the
President . . . to immediately begin the process of relocating
the United States Embassy in Israel to Jerusalem.” Id.
§ 214(a), 116 Stat. at 1365. Under subsection 214(c),
Congress forbids the Executive from using appropriated funds
for “publication of any official governmental document which
lists countries and their capital cities unless the publication
identifies Jerusalem as the capital of Israel.” Id. § 214(c), 116
Stat. at 1366. And subsection 214(d), the provision at issue in
this case, states:

Record of Place of Birth as Israel for Passport
Purposes.—For 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.
 4
Id. § 214(d), 116 Stat. at 1366. In a written statement issued
when he signed the bill into law, the President took the view
that section 214 is merely advisory because a congressional
command to the Executive to change the government’s
position on the status of Jerusalem would “impermissibly
interfere with the President’s constitutional authority to
formulate the position of the United States, speak for the
Nation in international affairs, and determine the terms on
which recognition is given to foreign states.” President
George W. Bush, Statement on Signing the Foreign Relations
Authorization Act, 38 WEEKLY COMP. PRES. DOC. 1659 (Sept.
30, 2002). Even in signing the Act, the President made clear
that “U.S. policy regarding Jerusalem has not changed.” Id.

Enactment of the law provoked confusion and criticism
overseas. The U.S. Consulate in Jerusalem informed the State
Department that “[d]espite [its] best efforts to get the word
out that U.S. policy on Jerusalem has not changed, the
reservations contained in the President’s signing statement
have been all but ignored, as Palestinians focus on what they
consider the negative precedent and symbolism of an
American law declaring that Israel’s capital is Jerusalem.”
J.A. at 398 (October 2002 declassified cable from the U.S.
Consulate in Jerusalem to the Secretary of State); see also id.
at 396–97 (October 2002 declassified cable from the State
Department to U.S. missions abroad).

In October 2002, Menachem Zivotofsky was born in
Jerusalem to parents who are U.S. citizens, making him a
citizen as well. See 8 U.S.C. § 1401(c) (2006). In December
2002, Menachem’s mother applied for a U.S. passport and a
Consular Report of Birth for her son at the U.S. Embassy in
Tel Aviv, Israel. She requested that both documents record
her son’s place of birth as “Jerusalem, Israel.” U.S. diplomatic
officials told Mrs. Zivotofsky that State Department policy
 5
forbade them from recording “Israel” as her son’s birthplace.
Consistent with its policy, the State Department issued a
passport and Consular Report of Birth identifying
“Jerusalem” as Menachem’s place of birth without reference
to Israel.

In September 2003, Menachem (by his parents) filed this
action for declaratory and injunctive relief ordering the State
Department to comply with the directive in section 214(d) and
record “Jerusalem, Israel,” as his birthplace in both his
passport and Consular Report of Birth. The district court ruled
that Menachem lacked standing to complain about the
contents of the documents because he could use them
regardless of how they described his birthplace. Invoking the
political question doctrine, the court also concluded that it
was without jurisdiction to consider his claim because there is
“a textually demonstrable constitutional commitment of the
issue to a coordinate political department.” Zivotofsky v. Sec’y
of State, No. 03-1921, slip op. at 9 (D.D.C. Sept. 7, 2004)
(quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). In the
district court’s view, the “desired passport wording . . . would
confer recognition in an official, diplomatic document that
Israel has sovereignty over Jerusalem.” Id. at 10. Such a
result, the court held, would unlawfully trench upon the
Executive’s exclusive power to recognize foreign
governments. Id.

We reversed the district court’s decision on standing,
concluding that the relevant issue is not whether Zivotofsky
can use his passport. He has standing because “Congress
conferred on him an individual right to have ‘Israel’ listed as
his place of birth on his passport and on his Consular Birth
Report,” and “the Secretary of State violated that individual
right.” Zivotofsky v. Sec’y of State, 444 F.3d 614, 619 (D.C.
Cir. 2006). We also remanded the case for the district court to
 6
determine whether section 214(d) is mandatory or advisory,
develop a more complete record, and consider the
implications, if any, of Zivotofsky’s request, first made in his
motion for summary judgment, that his passport and Consular
Report of Birth record “Israel” as his place of birth, instead of
noting “Jerusalem, Israel,” as he pleaded in the complaint. Id.
at 619–20. On remand, the district court granted the
Secretary’s motion to dismiss for lack of subject matter
jurisdiction under FED. R. CIV. P. 12(b)(1), holding again that
because the complaint asserts a claim that implicates the
President’s recognition power, it “raises a quintessential
political question which is not justiciable by the courts.”
Zivotofsky v. Sec’y of State, 511 F. Supp. 2d 97, 102 (D.D.C.
2007).

Zivotofsky appeals the district court’s dismissal of his
case, which we review de novo. See Piersall v. Winter, 435
F.3d 319, 321 (D.C. Cir. 2006). We have jurisdiction to
consider the appeal under 28 U.S.C. § 1291 (2006). The
threshold question before us is whether the courts have
jurisdiction to provide Zivotofsky the relief he seeks or
whether he must pursue his remedies from the political
branches. See Lin v. United States, 561 F.3d 502, 504 (D.C.
Cir. 2009).

II.

In Baker v. Carr, the Supreme Court held that courts may
not consider claims that raise issues whose resolution has
been committed to the political branches by the text of the
Constitution. 369 U.S. at 217; see also Japan Whaling Ass’n
v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986) (stating that
the judiciary may not review “policy choices and value
determinations constitutionally committed” to Congress or the
Executive). Following the framework laid out in Nixon v.
 7
United States, we begin by “interpret[ing] the [constitutional]
text in question and determin[ing] whether and to what extent
the issue is textually committed” to a political branch. 506
U.S. 224, 228 (1993); see also Clinton v. Jones, 520 U.S. 681,
700 n.34 (1997); Powell v. McCormack, 395 U.S. 486, 519
(1969). But to perform the analysis prescribed by Nixon, we
must first determine “the issue” before us. Only then can we
decide whether that issue has been committed by the
Constitution solely to the political branches or whether it is a
proper matter for the judiciary to resolve. See Nixon, 506 U.S.
at 228. Relying on section 214(d) of the Foreign Relations
Authorization Act, Zivotofsky asked the district court to
“order[] the [Secretary of State] to issue a passport to [him]
specifying [his] place of birth as [Israel]” and to instruct the
Executive “to comply with Section 214(d).” Compl. ¶ 9.
Given Zivotofsky’s claim, the issue before us is whether the
State Department can lawfully refuse to record his place of
birth as “Israel” in the face of a statute that directs it to do so.
See id. The issue is not, as the concurrence asserts, “[w]hether
§ 214(d) . . . is a constitutionally valid enactment,”
Concurring Op. at 3. This critical difference sets us on
different paths at the very outset.

It is well established that the Constitution’s grant of
authority to the President to “receive Ambassadors and other
public Ministers,” U.S. CONST. art. II, § 3, includes the power
to recognize foreign governments. See, e.g., LOUIS HENKIN,
FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 38
(2d ed. 1996) (explaining that the ambassadorial receipt
clause in Article II “implies [the] power to recognize (or not
to recognize) governments”). That this power belongs solely
to the President has been clear from the earliest days of the
Republic. See Saikrishna B. Prakash & Michael D. Ramsey,
The Executive Power over Foreign Affairs, 111 YALE L.J.
231, 312–13 (2001) (“Congress never dictated [to President
 8
George Washington] which countries or governments to
recognize because it understood that the Constitution had
shifted the recognition power from Congress to the
President.”). The Supreme Court has recognized this
constitutional commitment of authority to the President
repeatedly and consistently over many years. See Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964)
(“Political recognition [of a foreign sovereign] is exclusively
a function of the Executive.”); Goldwater v. Carter, 444 U.S.
996, 1007 (1979) (Brennan, J., dissenting) (“Our cases firmly
establish that the Constitution commits to the President alone
the power to recognize, and withdraw recognition from,
foreign regimes.” (citing Sabbatino, 376 U.S. at 410; Baker,
369 U.S. at 212; United States v. Pink, 315 U.S. 203, 228–30
(1942))).

The President’s exercise of the recognition power granted
solely to him by the Constitution cannot be reviewed by the
courts. See, e.g., Nat’l City Bank v. Republic of China, 348
U.S. 356, 358 (1955) (“The status of the Republic of China in
our courts is a matter for determination by the Executive and
is outside the competence of this Court.”). A decision made
by the President regarding which government is sovereign
over a particular place is an exercise of that power. As the
Supreme Court explained nearly two hundred years ago,
“when the executive branch . . . assume[s] a fact in regard to
the sovereignty of any island or country, it is conclusive on
the judicial department.” Williams v. Suffolk Ins. Co., 38 U.S.
415, 418 (1839) (refusing to question the President’s decision
regarding which country exercised sovereignty over the
Falkland Islands); see also Baker, 369 U.S. at 212 (“[T]he
judiciary ordinarily follows the executive as to which nation
has sovereignty over disputed territory . . . .”). As a result, we
have declined invitations to question the President’s use of the
recognition power. See Lin, 561 F.3d at 508 (refusing to deem
 9
residents of Taiwan U.S. nationals and to declare that they are
entitled to U.S. passports because courts may not intrude on
the Executive’s decision to remain silent about Taiwan’s
sovereignty).

Thus the President has exclusive and unreviewable
constitutional power to keep the United States out of the
debate over the status of Jerusalem. Nevertheless, Zivotofsky
asks us to review a policy of the State Department
implementing the President’s decision. But as the Supreme
Court has explained, policy decisions made pursuant to the
President’s recognition power are nonjusticiable political
questions. See Pink, 315 U.S. at 229 (“Objections to the
underlying policy as well as objections to recognition are to
be addressed to the political department and not to the
courts.”). And every president since 1948 has, as a matter of
official policy, purposefully avoided taking a position on the
issue whether Israel’s sovereignty extends to the city of
Jerusalem. See Br. for Appellee at 6; J.A. at 57 (Defendant’s
Responses to Plaintiff’s Interrogatories). The State
Department’s refusal to record “Israel” in passports and
Consular Reports of Birth of U.S. citizens born in Jerusalem
implements this longstanding policy of the Executive. See
Haig v. Agee, 453 U.S. 280, 292 (1981) (recognizing that a
U.S. passport is an official government document used to
communicate with foreign governments). By asking the
judiciary to order the State Department to mark official
government documents in a manner that would directly
contravene the President’s policy, Zivotofsky invites the
courts to call into question the President’s exercise of the
recognition power. This we cannot do. We therefore hold that
Zivotofsky’s claim presents a nonjusticiable political question
because it trenches upon the President’s constitutionally
committed recognition power.
 10
Zivotofsky argues that the political question doctrine
cannot foreclose a court from enforcing a duly enacted law. In
his view, this court is asked to do nothing more than interpret
a federal statute—a task within our power and competency.
To grant the requested relief would not require that we
determine the status of Jerusalem, he argues, because
enactment of section 214(d) has decided that question.
Enforcement of the rights Congress created presents no
political question. The government responds that even if we
find jurisdiction to consider Zivotofsky’s claim, we must
nevertheless strike section 214(d) as an unconstitutional
infringement on the President’s recognition power. We agree
that resolving Zivotofsky’s claim either at the jurisdictional
stage under the political question doctrine or on the merits by
striking section 214(d) implicates the recognition power. Only
the Executive—not Congress and not the courts—has the
power to define U.S. policy regarding Israel’s sovereignty
over Jerusalem and decide how best to implement that policy.
The question for us is whether Zivotofsky loses on
jurisdictional grounds, or on the merits because Congress
lacks the power to give him an enforceable right to have
“Israel” noted as his birthplace on his government
documents.2

Under the Supreme Court’s precedent and our own, the
answer must be the former. We are aware of no court that has
held we cannot or need not conduct the jurisdictional analysis

2
The hypothetical lawsuit posed by the concurrence presents a very
different issue than the one we face regarding the Executive’s
decision to recognize (or not to recognize) which country exercises
sovereignty over a disputed area. See Concurring Op. at 12. We do
not hold, as the concurrence seems to assume, that any claim
quarreling with a State Department passport policy would
necessarily implicate the Recognition Power and therefore raise a
political question.
 11
called for by the political question doctrine simply because
the claim asserted involves a statutory right. We must always
begin by interpreting the constitutional text in question and
determining “whether and to what extent the issue is textually
committed.” Nixon, 506 U.S. at 228. The question is not
whether the courts are competent to interpret a statute.
Certainly we are. But as our recent decision makes clear, we
will decline to “resolve [a] case through . . . statutory
construction” when it “presents a political question which
strips us of jurisdiction to undertake that otherwise familiar
task.” Lin, 561 F.3d at 506. In a case such as this, to borrow
the words of Professor Wechsler, “abstention of decision” is
required because deciding whether the Secretary of State must
mark a passport and Consular Report of Birth as Zivotofsky
requests would necessarily draw us into an area of
decisionmaking the Constitution leaves to the Executive
alone. See HERBERT WECHSLER, PRINCIPLES, POLITICS AND
FUNDAMENTAL LAW 11–14 (1961). That Congress took a
position on the status of Jerusalem and gave Zivotofsky a
statutory cause of action in an effort to make good on its
pronouncement is of no moment to whether the judiciary has
authority to resolve this dispute between the political
branches. We have never relied on the presence or absence of
a statutory challenge in deciding whether the political
question doctrine applies. See Lin, 561 F.3d at 506; S. African
Airways v. Dole, 817 F.2d 119, 123 (D.C. Cir. 1987) (noting
that although the court had “competence to interpret the
meaning of section 306(a)(2) of the Anti-Apartheid Act,” it
first had to “consider . . . whether in doing so [it] would
trespass on territory reserved to the political branches”);
Population Inst. v. McPherson, 797 F.2d 1062, 1070 (D.C.
Cir. 1986) (determining first whether there was a
“constitutional commitment of [the] issue to a coordinate
branch,” which would prevent the court from considering a
challenge to an agency’s interpretation of the Foreign
 12
Assistance and Related Programs Appropriations Act of
1985). We decline to be the first court to hold that a statutory
challenge to executive action trumps the analysis in Baker and
Nixon and renders the political question doctrine inapplicable.

III.

Because we conclude that Zivotofsky’s complaint raises a
nonjusticiable political question, we affirm the district court’s
dismissal of his suit for lack of subject matter jurisdiction.3
Lacking authority to consider the case, we do not address the
merits of the parties’ other arguments. The judgment of the
district court is

Affirmed.

3
Our concurring colleague raises an interesting point about the
distinction between questions we do not have jurisdiction to
consider and those that are nonjusticiable. See Concurring Op. at 5–
7. Although Baker makes that distinction, see 369 U.S. at 198, the
Court’s other cases suggest that claims raising political questions
fall into both categories. See, e.g., INS v. Chadha, 462 U.S. 919,
941 (1983). We have consistently dismissed claims raising political
questions for want of subject matter jurisdiction once we have
found nonjusticiability. See Lin, 561 F.3d at 504; Schneider v.
Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (“The principle that
the courts lack jurisdiction over political decisions that are by their
nature committed to the political branches to the exclusion of the
judiciary is as old as the fundamental principle of judicial review.”
(internal quotation marks omitted)). We do not grapple with this
dispute, if one indeed exists, because it makes no practical
difference in the outcome of the case. Either way, we lack authority
to consider Zivotofsky’s claim.
 EDWARDS, Senior Circuit Judge, concurring: In 2002,
Congress passed the Foreign Relations Authorization Act, Fiscal
Year 2003, Pub. L. No. 107-228, 116 Stat. 1350 (2002)
(“Foreign Relations Authorizations Act” or “Act”). The Act
was signed into law on September 20, 2002 by President George
W. Bush. Section 214 of the Act, entitled “United States Policy
with Respect to Jerusalem as the Capital of Israel,” includes the
following provision which is at issue in this case:
(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR
PASSPORT PURPOSES – For 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 shall, upon the request of the
citizen or the citizen’s legal guardian, record the place of
birth as Israel.
Id. § 214(d).
When the Foreign Relations Authorizations Act was signed
into law, the President attached a “signing statement,” objecting
to portions of § 214. The statement asserted that “Section 214,
concerning Jerusalem, impermissibly interferes with the
President’s constitutional authority to . . . determine the terms on
which recognition is given to foreign states. U.S. policy
regarding Jerusalem has not changed.” President George W.
Bush, Statement on Signing the Foreign Relations Authorization
Act, Fiscal Year 2003, 2 PUB. PAPERS 1698 (Sept. 30, 2002).
Menachem Binyamin Zivotofsky was born in 2002 in
Jerusalem. Because his parents are United States citizens,
Zivotofsky is also a United States citizen. See 8 U.S.C.
§ 1401(c) (2006). After Zivotofsky’s birth, his mother filed an
application on his behalf for a consular report of birth abroad
and a United States passport. She requested of United States
officials that these documents indicate her son’s place of birth
as “Jerusalem, Israel.” United States diplomatic officials
informed Mrs. Zivotofsky that passports issued to United States
citizens born in Jerusalem could not record “Israel” as the place
 2

of birth. When the Zivotofskys received Menachem’s passport
and consular report, both documents recorded his place of birth
as “Jerusalem.” On his behalf, Zivotofsky’s parents filed this
action under § 214(d) against the Secretary of State seeking to
compel the State Department to identify Menachem’s place of
birth as “Israel.”
In defending against Zivotofsky’s action in this case, the
Secretary has pressed two principal arguments:
[1] Zivotofsky has no judicially enforceable right because
his complaint presents a political question. The power to
recognize foreign sovereigns – including the power to
recognize claims over disputed foreign territory – is
textually committed by the Constitution to the President,
and is therefore not subject to judicial override.
[2] Section 214(d) is unconstitutional. Article II assigns to
the President the exclusive power to recognize foreign
sovereigns, and Congress has no authority to override or
intrude on that power.
Appellee’s Br. at 18, 21. The Secretary’s first argument – that
Zivotofsky’s claim is a nonjusticiable political question – is
specious. The Secretary’s second argument, contesting the
constitutionality of § 214(d), stands on solid footing.
 3

I. THE POLITICAL QUESTION DOCTRINE HAS NO
APPLICATION IN THIS CASE
A. The Issue Before the Court
The Secretary does not doubt that Zivotofsky has standing
to raise a viable cause of action under § 214(d) of the Foreign
Relations Authorizations Act. Nor does the Secretary doubt that
Zivotofsky properly invoked the District Court’s statutory
jurisdiction under 28 U.S.C. §§ 1331, 1346(a) (2), and 1361.
Therefore, the issue before this court is:
Whether § 214(d) of the Foreign Relations Authorizations
Act, which affords Zivotofsky a statutory right to have
“Israel” listed as the place of birth on his passport, is a
constitutionally valid enactment.
Put another way, the court must decide:
Whether, in enacting § 214(d), a provision purporting to
address “United States Policy with Respect to Jerusalem as
the Capital of Israel,” Congress impermissibly intruded on
the President’s exclusive power to recognize foreign
sovereigns.
These questions involve commonplace issues of statutory
and constitutional interpretation, and they are plainly matters for
the court to decide. And in answering these questions, this court
has no occasion to address a “political question” that is reserved
to the exclusive authority of one of the political branches of
government.
B. First Principles Governing the Jurisdiction of
Federal Courts
In considering whether a matter should be dismissed as a
nonjusticiable political question, it is important to recall the first
principles that govern the jurisdiction of federal courts:
 4

• “It is, emphatically the province and duty of the judicial
department to say what the law is.” Marbury v. Madison,
5 U.S. (1 Cranch) 137, 177 (1803).
• “[F]ederal courts lack the authority to abstain from the
exercise of jurisdiction that has been conferred.” New
Orleans Pub. Serv., Inc. v. Council of New Orleans, 491
U.S. 350, 358 (1989); see also Boumediene v. Bush, 128 S.
Ct. 2229, 2262 (2008).
• “We have no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not
given. The one or the other would be treason to the
constitution. Questions may occur which we would gladly
avoid; but we cannot avoid them.” Cohens v. Virginia, 19
U.S. (6 Wheat.) 264, 404 (1821).
In sum, “[w]hen a Federal court is properly appealed to in
a case over which it has by law jurisdiction, it is its duty to take
such jurisdiction. . . . The right of a party plaintiff to choose a
Federal court where there is a choice cannot be properly
denied.” Willcox v. Consol. Gas Co. of New York, 212 U.S. 19,
40 (1909).
C. Nonjusticiable “Political Questions”
The political question doctrine embraces a limited exception
to the rule that “federal courts lack the authority to abstain from
the exercise of jurisdiction that has been conferred.” New
Orleans Pub. Serv., 491 U.S. at 358. As the Supreme Court
explained in Baker v. Carr, 369 U.S. 186 (1962), “[w]here the
Constitution assigns a particular function wholly and indivisibly
to another department, the federal judiciary does not intervene.”
Id. at 246 (Douglas, J., concurring). The converse of this
proposition is that a federal court must not abstain from the
exercise of jurisdiction that has been conferred, unless it has
been asked to conclusively resolve a question that is “wholly
and indivisibly” committed by the Constitution to a political
 5

branch of government. “Underlying these assertions is the
undisputed constitutional principle that Congress, and not the
Judiciary, defines the scope of federal jurisdiction within the
constitutionally permissible bounds.” New Orleans Pub. Serv.,
491 U.S. at 359.
The Supreme Court has described the political question
doctrine as follows:
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility
of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a
court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
Baker, 369 U.S. at 217; see also INS v. Chadha, 462 U.S. 919,
941 (1983); United States v. Munoz-Flores, 495 U.S. 385, 389-
90 (1990). As explained below, this case in no way fits within
the frame of the Baker v. Carr “political question” paradigm.
D. The Crucial Distinction Between Jurisdiction and
Nonjusticiability
In explaining the political question doctrine, the Court in
Baker v. Carr was careful to amplify a crucial distinction
between “cases withholding federal judicial relief [1] rest[ing]
upon a lack of federal jurisdiction [and] [2] upon the
inappropriateness of the subject matter for judicial consideration
– what [the Court has] designated ‘nonjusticiability.’” 369 U.S.
at 198.
 6

The distinction between the two grounds is significant. In
the instance of nonjusticiability, consideration of the cause
is not wholly and immediately foreclosed; rather, the
Court’s inquiry necessarily proceeds to the point of
deciding whether the duty asserted can be judicially
identified and its breach judicially determined, and whether
protection for the right asserted can be judicially molded.
In the instance of lack of jurisdiction the cause either does
not “arise under” the Federal Constitution, laws or treaties
(or fall within one of the other enumerated categories of
Art. III, § 2), or is not a “case or controversy” within the
meaning of that section; or the cause is not one described by
any jurisdictional statute.
Id.
When a federal court dismisses a case because it presents a
“political question,” it does so not because the court lacks
subject matter jurisdiction but, rather, because the “duty asserted
can[not] be judicially identified and its breach judicially
determined.” Id. “[T]he mere fact that [a] suit seeks protection
of a political right does not mean it presents a political
question.” Id. at 209. And “it is error to suppose that every case
or controversy which touches foreign relations lies beyond
judicial cognizance.” Id. at 211; see also Simon v. Republic of
Iraq, 529 F.3d 1187, 1197 (D.C. Cir. 2008) (the political
question doctrine cannot be invoked to dismiss an action merely
because it “may affect the foreign relations of the United
States”). As noted scholars have pointed out, “[i]nterpretation
of statutes affecting foreign affairs is not likely to be barred by
[the] political-question doctrine.” 13C CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE
AND PROCEDURE § 3534.2 (3d ed. 2008), cases cited in n.35.

The political question doctrine is purposely very narrow in
scope, lest the courts use it as a vehicle “to decline the exercise
 7

of jurisdiction which is given.” Cohens, 19 U.S. (6 Wheat.) at
404. As the Court noted in Baker,
[t]he doctrine of which we treat is one of “political
questions,” not one of “political cases.” The courts cannot
reject as “no law suit” a bona fide controversy as to whether
some action denominated “‘political’” exceeds
constitutional authority.
369 U.S. at 217. Unsurprisingly, federal cases in which subject
matter jurisdiction and standing are properly asserted are rarely
dismissed as nonjusticiable pursuant to the political question
doctrine. Indeed, since Baker, the Supreme Court has only
dismissed two cases as presenting nonjusticiable political
questions. See Gilligan v. Morgan, 413 U.S. 1, 5 (1973)
(declining “broad call on judicial power to assume continuing
regulatory jurisdiction over the activities of the Ohio National
Guard” on the basis of an explicit constitutional textual
commitment of that power to Congress and President); Nixon v.
United States, 506 U.S. 224 (1993) (finding request to review
Senate impeachment proceedings nonjusticiable in light of
explicit textual constitutional commitment of impeachment
power to Senate).
The Supreme Court often hears and decides cases bearing
major foreign policy implications. See, e.g., Boumediene, 128
S. Ct. 2229 (declining to dismiss the case under the political
question doctrine and ruling that aliens detained as enemy
combatants at United States Naval Station at Guantanamo Bay,
Cuba, were entitled to the privilege of habeas corpus to
challenge the legality of their detention, even though the United
States did not claim sovereignty over place of detention). These
cases are not dismissed pursuant to the political question
doctrine. The reason is simple: Although the establishment of
policies governing foreign relations is the business of the
political branches, the determination of the meaning and legality
of a congressionally enacted statute is the business of the courts.
 8

E. The Legal Principles Controlling This Case
The principles enunciated by Baker and its progeny are
really quite simple to comprehend and apply in this case. The
controlling principles governing this case are these:
• The federal courts decide matters of statutory
construction and constitutional interpretation. Japan
Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230
(1986) (“[U]nder the Constitution, one of the Judiciary’s
characteristic roles is to interpret statutes, and we cannot
shirk this responsibility merely because our decision may
have significant political overtones.”); Chadha, 462 U.S. at
943 (“Resolution of litigation challenging the constitutional
authority of one of the three branches cannot be evaded by
courts because the issues have political implications. . . .”);
see also Goldwater v. Carter, 444 U.S. 996, 1002 (1979)
(Powell, J., concurring in the judgment) (“[The Supreme
Court has] the responsibility to decide whether both the
Executive and Legislative branches have constitutional
roles to play in termination of a treaty. If the Congress, by
appropriate formal action, had challenged the President’s
authority to terminate the treaty . . . it would be the duty of
this Court to resolve the issue.”).
• When the federal courts review the constitutionality of
a challenged statute, they do not infringe the authority
of the legislative branch. In Munoz-Flores, 495 U.S. at
390, the Supreme Court tellingly stated:
The Government may be right that a judicial finding
that Congress has passed an unconstitutional law might
in some sense be said to entail a “lack of respect” for
Congress’ judgment. But disrespect, in the sense the
Government uses the term, cannot be sufficient to
create a political question. If it were, every judicial
 9

resolution of a constitutional challenge to a
congressional enactment would be impermissible.
• The federal courts may not decide an issue whose
resolution is committed by the Constitution to the
exclusive authority of a political branch of government.
See Baker, 369 U.S. at 217; Gilligan, 413 U.S. at 6-7;
Nixon, 506 U.S. at 229-36. This does not mean that a court
may not decide a case that merely implicates a matter
within the authority of a political branch. Congress, alone,
has the authority to pass legislation, but it does not follow
from this that the courts are without authority to assess the
constitutionality of a statute that has been properly
challenged. Rather, the political question doctrine bars
judicial review only when the precise matter to be decided
has been constitutionally committed to the exclusive
authority of a political branch of government. Compare
Nixon, 506 U.S. at 229-36, with Powell v. McCormack, 395
U.S. 486, 519-22 (1969).
• The courts may, however, decide whether and to what
extent a matter is reserved to the exclusive authority of
a political branch. Baker, 369 U.S. at 211 (“Deciding
whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether
the action of that branch exceeds whatever authority has
been committed, is itself a delicate exercise in
constitutional interpretation, and is a responsibility of this
Court as ultimate interpreter of the Constitution.”); Powell,
395 U.S. at 521 (“[W]hether there is a ‘textually
demonstrable constitutional commitment of the issue to a
coordinate political department’ of government and what is
the scope of such commitment are questions we must
resolve.”); Nixon, 506 U.S. at 238 (“[C]ourts possess power
to review either legislative or executive action that
transgresses identifiable textual limits”).
 10

• The courts routinely adjudicate separation-of-powers
claims. As the Court noted in Munoz-Flores, 495 U.S. at
393:
In many cases involving claimed separation-of-powers
violations, the branch whose power has allegedly been
appropriated has both the incentive to protect its
prerogatives and institutional mechanisms to help it do
so. Nevertheless, the Court adjudicates those
separation-of-powers claims, often without suggesting
that they might raise political questions. See, e.g.,
Mistretta v. United States, 488 U.S. 361, 371-379
(1989) (holding that Sentencing Reform Act of 1984,
18 U.S.C. § 3551 et seq., and 28 U.S.C. § 991 et seq.,
did not result in Executive’s wielding legislative
powers, despite either House’s power to block Act’s
passage); Morrison v. Olson, 487 U.S. 654, 685-696
(1988) (holding that independent counsel provision of
Ethics in Government Act of 1978, 28 U.S.C. § 591 et
seq., is not a congressional or judicial usurpation of
executive functions, despite President’s veto power);
INS v. Chadha, 462 U.S. 919 (1983) (explicitly finding
that separation-of-powers challenge to legislative veto
presented no political question). In short, the fact that
one institution of Government has mechanisms
available to guard against incursions into its power by
other governmental institutions does not require that
the Judiciary remove itself from the controversy by
labeling the issue a political question.
 11

• If a federal court finds that a political branch has
overreached in its claim of constitutionally committed
authority, the court will decide the matter that is
properly before it for resolution on the merits. Baker,
369 U.S. at 211 (“Deciding whether a matter has in any
measure been committed by the Constitution to another
branch of government, or whether the action of that branch
exceeds whatever authority has been committed, is itself a
delicate exercise in constitutional interpretation, and is a
responsibility of this Court as ultimate interpreter of the
Constitution”); accord Powell, 395 U.S. at 521.
• If a federal court determines that a political branch has
acted within the compass of exclusive authority granted
to it by the Constitution, the court may determine
whether the other branch has acted to infringe that
authority. The court does not review the substantive
decision reached by the branch with exclusive authority;
it merely determines whether the exercise of that
authority has been infringed by the other branch.
Baker, 369 U.S. at 212 (“[O]nce sovereignty over an area is
politically determined and declared, courts may examine
the resulting status and decide independently whether a
statute applies to that area.”); Vermilya-Brown Co., Inc. v.
Connell, 335 U.S. 377, 380-81 (1948) (holding question
whether Fair Labor Standards Act covered employees
allegedly engaged in the production of goods for commerce
on a leasehold of the United States was not a political
question; in reaching this conclusion, the Court made clear
it was not second-guessing the Executive’s determination
regarding the sovereignty of Great Britain over the foreign
territory).
 12

F. The Zivotofsky Claim is Plainly Justiciable
In light of the legal principles that control this case, the
Secretary’s attempt to invoke the political question doctrine is
meritless. The following example amplifies the point:
Assume that a lawfully enacted congressional statute
provides that individuals over the age of 18 have a right to
secure a passport on their own. Assume further that the statute
gives individuals an enforceable right of action. If the Secretary
of State adopts a policy pursuant to which 18-year-olds are
denied passports without parental consent, claiming an exercise
of the Executive’s recognition power, an aggrieved party would
have a right of action to challenge the Secretary. A federal court
hearing the case would be without authority to dismiss the action
as a nonjusticiable political question. Why? Because the
plaintiff has standing to pursue her claim and the court has
jurisdiction to hear it. And the court would be well able to
evaluate the competing claims of power and easily determine
that the Executive overreached in its claim to exclusive authority
under the recognition power. The court would find no valid
exercise of textually committed power by the executive branch.
See Powell, 395 U.S. 486.
The flip side of this example is seen in a case like Nixon,
506 U.S. 224. In Nixon, the petitioner asked the Court to decide
whether Senate Rule XI, which allowed “a committee of
Senators to hear evidence against an individual who has been
impeached and to report that evidence to the full Senate,”
violated the Constitution’s Impeachment Trial Clause, Art. I, §
3, cl. 6. 506 U.S. at 226. The Trial Clause provides that the
“Senate shall have the sole Power to try all Impeachments.” Id.
(emphasis added). The Court first found that this provision
reflects a clear “grant of authority to the Senate, and the word
‘sole’ indicates that this authority is reposed in the Senate and
nowhere else.” Id. at 229. Having found a textually
demonstrable constitutional commitment of the impeachment
 13

issue to a coordinate political department, the Court held that the
action involved a nonjusticiable political question. Zivotofsky’s
claim, which is founded on a cause of action under § 214(d), is
nothing like Nixon’s claim.
In this case, there are two questions that are properly before
the court: (1) whether the Executive’s passport policy reflects
an action taken within the President’s exclusive power to
recognize foreign sovereigns; and (2) if so, whether Congress’
enactment of § 214(d) impermissibly intruded on the President’s
exclusive power to recognize foreign sovereigns. These
questions raise issues that are constitutionally committed to the
judicial branch to decide. Zivotofsky’s claim resting on
§ 214(d) does not require this court to evaluate the wisdom of
the Executive’s foreign affairs decisions or to determine the
political status of Jerusalem. The court’s role in this case is to
determine the constitutionality of a congressional enactment.
And this role is well within the constitutional authority of the
judiciary. Japan Whaling Ass’n, 478 U.S. at 230 (“[U]nder the
Constitution, one of the Judiciary’s characteristic roles is to
interpret statutes, and we cannot shirk this responsibility merely
because our decision may have significant political overtones.”).
 14

II. SECTION 214(D) UNCONSTITUTIONALLY INFRINGES THE
EXECUTIVE’S EXCLUSIVE AUTHORITY UNDER THE
RECOGNITION POWER
Zivotofsky has asked the court to direct the State
Department to designate “Israel” as his place of birth on his
passport pursuant to Congress’ directive in § 214(d). The
Executive asserts that § 214(d), if construed to be mandatory,
represents an unconstitutional infringement of the President’s
recognition power as it concerns Jerusalem.
A. The Recognition Power
The Executive has exclusive and unreviewable authority to
recognize foreign sovereigns. This power derives from Article
II, § 3 of the Constitution, which gives the President the sole
power to “receive Ambassadors and other public Ministers”
from foreign countries. U.S. CONST. Art. II, § 3. The power to
receive ambassadors includes the power to recognize
governments with whom the United States will establish
diplomatic relationships. This recognition power is vested
solely in the President. See Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 410 (1964) (“Political recognition is
exclusively a function of the Executive.”); Baker, 369 U.S. at
212 (“[R]ecognition of foreign governments so strongly defies
judicial treatment that without executive recognition a foreign
state has been called ‘a republic of whose existence we know
nothing. . . .’”).
It is also clear that, under the recognition power, the
President has the sole authority to make determinations
regarding the sovereignty of disputed territories. See Williams
v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415, 420 (1839) (stating
that when the executive branch “assume[s] a fact in regard to
the sovereignty of any island or country . . . it is conclusive on
the judicial department”); Baker, 369 U.S. at 212 (“[T]he
judiciary ordinarily follows the executive as to which nation has
 15

sovereignty over disputed territory. . . .”). Finally, and
importantly, the recognition power is “not limited to a
determination of the government to be recognized. It includes
the power to determine the policy which is to govern the
question of recognition.” United States v. Pink, 315 U.S. 203,
229 (1942).
B. The President’s Passport Policy Regarding the
Designation of Jerusalem Is an Exercise of the
Recognition Power
The Executive and Congress historically have shared
authority over the regulation of passports. However, “[f]rom
the outset, Congress [has] endorsed not only the underlying
premise of Executive authority in the areas of foreign policy and
national security, but also its specific application to the subject
of passports. Early Congresses enacted statutes expressly
recognizing the Executive authority with respect to passports.”
Haig v. Agee, 453 U.S. 280, 294 (1981); see also id. at 292-300
(discussing history of congressional legislation and Executive
control over passports); Kent v. Dulles, 357 U.S. 116, 122-24
(1958) (same). Congress passed the first Passport Act in 1856,
endorsing the Executive’s power to control passports, Kent, 357
U.S. at 123. The current Passport Act maintains this
recognition of Executive authority. 22 U.S.C. § 211a (“The
Secretary of State may grant and issue passports, and cause
passports to be granted, issued, and verified in foreign countries
by diplomatic and consular officers of the United States and by
such other employees of the Department of States . . . .”).
Although Congress often has recognized the authority of the
Executive to regulate the issuance of passports, this obviously
does not confirm that the Executive retains exclusive control
over all matters relating to passports. Indeed, the history of
congressional legislation in this area suggests otherwise. See,
e.g., 22 U.S.C. § 211a (restricting the Executive department
from designating a passport as restricted for travel “[u]nless
 16

authorized by law”). It is clear, however, that Congress lacks
the power to interfere with a passport policy adopted by the
Executive in furtherance of the recognition power. Appellant
Zivotofsky does not dispute this. Rather, Zivotofsky contends
that the passport rules regarding Israel do not embody a policy
in furtherance of the Executive’s recognition power.
Zivotofsky’s position fails. The record in this case supports the
Secretary’s claim that the policy relating to the designation of
Jerusalem on passports lawfully “govern[s] the question of
recognition.” Pink, 315 U.S. at 229.
“The status of Jerusalem is one of the most sensitive and
long-standing disputes in the Arab-Israeli conflict, having
remained unsettled since 1948.” Appellee’s Br. at 6. The
United States has long refrained from recognizing Jerusalem as
a city located within the sovereign state of Israel. See
Defendant’s Responses to Plaintiff’s Interrogatories, reprinted
in Joint Appendix (“J.A.”) 56-57. Instead, United States policy
since the Truman Administration has been “to promote a final
and permanent resolution of final status issues, including the
status of Jerusalem, through negotiations by the parties and
supported by the international community.” Id. at 57. “U.S.
Presidents have consistently endeavored to maintain a strict
policy of not prejudging the Jerusalem status issue and thus not
engaging in official actions that would recognize, or might be
perceived as constituting recognition of, Jerusalem as either the
capital city of Israel, or as a city located within the sovereign
territory of Israel.” Id. at 59. These points are uncontested.
The Secretary’s rules regarding the designation of Jerusalem
on passports obviously aims to further the United States’ policy
regarding the recognition of Israel. The State Department’s
policies and procedures for preparing passports and reports of
birth are outlined in its Foreign Affairs Manual (“FAM”). J.A.
376. The FAM includes a “Birthplace Transcription Guide,”
which details the “acceptable name and spelling for specific
 17

countries and territories to be used in U.S. passports,” in
accordance with United States policy. J.A. 381. The rules
provide that, as a general matter, the country recognized by the
United States as having sovereignty over the place of birth of a
passport applicant is recorded on the passport. See 7 FAM
1383.5-4, J.A. 378. However, “[w]here the birthplace of the
applicant is located in territory disputed by another country, the
city or area of birth may be written in the passport . . . if shown
on the application and if included for use on the birthplace
transcription guide.” 7 FAM 1383.5-2, J.A. 377. There are
special rules for Jerusalem because it is a disputed territory. For
citizens born after 1948 in Jerusalem, the Birthplace
Transcription Guide instructs that only “Jerusalem” should be
recorded as the place of birth. See id. at 1383.1, J.A. 376, 387;
7 FAM 1383.5-6, J.A. 379. The Guide specifically indicates that
the official is not to write “Israel” or “Jordan.” J.A. 387. The
Guide further instructs that Israel “[d]oes not include Jerusalem
or areas under military occupation,” and Jordan “[d]oes not
include Jerusalem.” Id. These rules plainly implement the
Executive’s determination not to recognize Jerusalem as part of
any sovereign regime.
Zivotofsky contends that the “designation of a passport
holder’s place of birth does not involve the ‘recognition of
foreign sovereigns.’” Appellant’s Br. at 27. This argument
misperceives the issues in this case. As noted above, the
recognition power is “not limited to a determination of the
government to be recognized. It includes the power to
determine the policy which is to govern the question of
recognition.” Pink, 315 U.S. at 229. The rules regarding the
designation of Jerusalem are part of the Executive’s overarching
policy governing the recognition of Israel.
Zivotofsky also claims that the “‘birthplace’ entry on a
passport . . . is nothing more than one means of identifying the
passport-holder.” Appellant’s Br. at 37. This attempt to
 18

downplay the significance of a passport is futile. As the
Supreme Court has said, “[a] passport is, in a sense, a letter of
introduction in which the issuing sovereign vouches for the
bearer.” Agee, 453 U.S. at 292. It is a “political document” that
is “addressed to foreign powers,” “by which the bearer is
recognised, in foreign countries, as an American citizen.” Id.
(quoting Urtetiqui v. D’Arcy, 34 U.S. (9 Pet.) 692, 698 (1835)).
A “political document” indicating that a person born in
Jerusalem is from the sovereign nation of Israel misstates the
United States’ position on the recognition of Israel. So long as
the Executive remains neutral on the question of Jerusalem, the
Secretary surely may adopt polices declining to issue official
documents that suggest otherwise.
Finally, Zivotofsky argues that, because the Secretary’s
passport rules concerning Jerusalem have only a “negligible
impact on American foreign policy,” the rules cannot be viewed
as policy governing the recognition of Israel. Appellant’s Br. at
33. The Secretary responds by pointing to evidence of the
international reaction to the enactment of § 214 in 2002.
According to the State Department, “Palestinians from across
the political spectrum strongly condemned the Jerusalem
provisions of the [Act], interpreting those provisions as a
reversal of longstanding U.S. policy that Jerusalem’s status
should be determined by Israel and the Palestinians in final
status talks.” J.A. 398-99. One need not assess the international
reaction to § 214 to find that the Secretary’s rules regarding the
designation of Jerusalem on passports aims to further the United
States’ policy of neutrality on the question of Jerusalem. It is
obvious. The Executive’s policy is not to prejudge the status of
Jerusalem, and any official statement to the contrary impinges
upon the Executive’s prerogative. The Executive has the
exclusive authority to implement policies in furtherance of the
recognition power and this court has no authority to second-
guess the Executive’s judgment when, as here, it is clear that the
disputed policy is in furtherance of the recognition power.
 19

C. Section 214(d) is a Mandatory Statutory Provision
The Secretary also argues that “Section 214(d) constitutes
only a legislative recommendation – not a command – to the
Executive Branch with respect to recognition of sovereignty
over Jerusalem,” Appellee’s Br. at 20, and therefore there is no
reason for this court to opine on its constitutionality. The
District Court rejected this argument, finding that “it is difficult
to construe Section 214(d) as anything but mandatory.”
Zivotofsky ex rel. Zivotofsky v. Sec’y of State, 511 F. Supp. 2d
97, 105 (D.D.C. 2007). This is an understatement. Section
214(d) states, “[T]he Secretary shall, upon the request of the
citizen or the citizen’s legal guardian, record the place of birth
as Israel.” As appellant aptly notes, “section 214(d) is as
mandatory as a statute can be.” Appellant’s Reply Br. at 7. The
words of the statute make it plain that “Congress was fully
aware when it enacted the law that the Secretary of State was
acting differently than Congress wanted him to act. It enacted
subsection (d) with the specific intent of altering the State
Department practice.” Id. at 8.
Section 214(d) is plainly mandatory. The provision dictates
that the Secretary shall record Israel as the place of birth upon
the request of a citizen who is born in Jerusalem and entitled to
a United States passport. “Shall” has long been understood as
“the language of command.” Escoe v. Zerbst, 295 U.S. 490, 493
(1935); see also Miller v. French, 530 U.S. 327, 337 (2000)
(referring to the “mandatory term ‘shall’”); Ass’n of Civilization
Technicians, Mont. Air Chapter No. 29 v. Fed. Labor Relations
Auth., 22 F.3d 1150, 1153 (D.C. Cir. 1994) (“The word ‘shall’
generally indicates a command that admits of no discretion on
the part of the person instructed to carry out the directive.”).
There are rare exceptions to this rule that apply only where
it would make little sense to interpret “shall” as “must.” See,
e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748, 760 (2005)
(declining to read “shall” as mandatory in statute intended to
 20

give local police broad powers to enforce domestic abuse
restraining orders in light of the “well established tradition of
police discretion”). There is no evidence in this case that the
legislature intended “shall” in § 214(d) to mean anything other
than “must.” Indeed, when § 214(d) is read in conjunction with
the title of § 214 – “United States Policy with Respect to
Jerusalem as the Capital of Israel” – there can be little doubt
about Congress’ intent. This conclusion is bolstered by
reference to the language in § 214(a), where Congress merely
“urges the President . . . to immediately begin the process of
relocating the United States Embassy in Israel to Jerusalem.”
Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L.
No. 107-228, § 214(a), 116 Stat. 1350 (2002). Given the
structure of the statute, Congress obviously understood the
difference between an advisory provision and a statutory
command. See Jama v. Immigration and Customs Enforcement,
543 U.S. 335, 346 (2005) (juxtaposing the permissive “may”
with the mandatory “shall”). Section 214(d) is undoubtedly
mandatory.
The Secretary also argues that “Section 214(d) should be
interpreted as advisory to avoid constitutional doubt.”
Appellee’s Br. at 35. However, because the statute is
unambiguous, the canon of constitutional avoidance does not
apply in this case. Clark v. Martinez, 543 U.S. 371, 385 (2005)
(“The canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis, the
statute is found to be susceptible of more than one
construction.”); United States v. Albertini, 472 U.S. 675, 680
(1985) (“Statutes should be construed to avoid constitutional
questions, but this interpretative canon is not a license for the
judiciary to rewrite language enacted by the legislature.”). The
congressional command of § 214(a) is clear and unmistakable;
therefore, this court is obliged to render a decision on its
constitutionality.
 21

D. Section 214(d) Unconstitutionally Infringes the
President’s Exclusive Power to Recognize Foreign
Sovereigns
The final question in this case is whether § 214(d) of the
Foreign Relations Authorizations Act, which affords Zivotofsky
a statutory right to have “Israel” listed as the place of birth on
his passport, is a constitutionally valid enactment. Given the
mandatory terms of the statute, it can hardly be doubted that
§ 214(d) intrudes on the President’s recognition power. In
commanding that the Secretary shall record Israel as the place
of birth upon the request of a citizen who is born in Jerusalem
and entitled to a United States passport, the statute plainly defies
the Executive’s determination to the contrary. As noted above,
the rules adopted by the Secretary of State explicitly ban
government officials from recording “Israel” as the place of
birth for citizens born in Jerusalem. Section 214(d) effectively
vitiates the Executive’s policy.
Zivotofsky argues that § 214(d) cannot be seen to interfere
with the Executive’s recognition power, because the statute here
is no different from another uncontested legislative action taken
by Congress with respect to Taiwan. In 1994, Congress enacted
a provision requiring that, “[f]or purposes of the registration of
birth or certificate of nationality of a United States citizen born
in Taiwan, the Secretary of State shall permit the place of birth
to be recorded as Taiwan.” Foreign Relations Authorization
Act, Fiscal Years 1994 and 1995, Pub. L. No. 103-236, § 132,
108 Stat. 382 (1994) (as amended by State Department:
Technical Amendments, Pub. L. No. 103-415, § 1(r), 108 Stat.
4299, 4302 (1994)). This example is inapposite. Following the
enactment of the statute covering Taiwan, the State Department
determined that the congressional provision was consistent with
the United States’ policy that the People’s Republic of China is
the “sole legal government of China” and “Taiwan is a part of
China.” U.S. Department of State Passport Bulletin 94-12 (Nov.
 22

7, 1994), J.A. 142-43. Because listing “Taiwan” did not
contravene the President’s position regarding China’s
sovereignty, the State Department allowed American citizens
born in Taiwan to record “Taiwan” as their place of birth. See
id. The present case is different from the Taiwan example. The
State Department here has determined that recording Israel as
the place of birth for United States citizens born in Jerusalem
misstates the terms of this country’s recognition of Israel.
The more important point here is that the President has the
exclusive power to establish the policies governing the
recognition of foreign sovereigns. The Executive may treat
different situations differently, depending upon how the
President assesses each situation. These are matters within the
exclusive power of the Executive under Art. II, § 3, and neither
Congress nor the Judiciary has the authority to second-guess the
Executive’s policies governing the terms of recognition.
“[I]t remains a basic principle of our constitutional scheme
that one branch of the government may not intrude upon the
central prerogatives of another.” Loving v. United States, 517
U.S. 748, 757 (1996). In my view, the bottom line of the court’s
judgment in this case is inescapable: “Section 214(d) is
unconstitutional. Article II assigns to the President the exclusive
power to recognize foreign sovereigns, and Congress has no
authority to override or intrude on that power.” Appellee’s Br.
at 21. Section 214(d) impermissibly intrudes on the President’s
exclusive power to recognize foreign sovereigns. Because
appellant Zivotofsky has no viable cause of action under
§ 214(d), I concur in the judgment.