Zivotofsky v. Kerry and the Balance of Power

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Zivotofsky v. Kerry (Zivotofsky II) is a case about the constitutional distribution of power. The narrow question is whether Congress or the President has the power to determine whether a U.S. citizen born in Jerusalem can have “Israel” listed as his country of birth on his passport when the President does not formally recognize Jerusalem as part of Israel. As for the broader question—well, the case is packed with broader questions. Does the President have the exclusive constitutional authority to undertake the international legal act of recognition? Does the President have further exclusive constitutional authority to control the content of executive-branch communications with foreign nations? What powers does Congress have in foreign affairs? And are these justiciable issues for the federal courts to resolve?

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American Journal of International Law Unbound