The Volokh Conspiracy
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With oral arguments in the Jerusalem passport case next Monday, Prof. Jack Goldsmith argues today that Supreme Court should avoid the difficult questions of exclusive executive power in Zivotofsky v. Kerry by ruling that Congress lacks Art. I power to have passed the statute in the first place. I agree with him on the avoidance, but think the facts established in the case preclude the Art. I holding. (He taught me international law, but he deserves none of the blame for the results.)
Goldsmith argues that putting "Israel" on the passport does not have to do with the "movement of persons across borders," and thus falls outside the foreign commerce power. He also dismisses it as a function of the immigration and naturalization power.
But this raises the question of what "place of birth" is doing on passports in the first place, given that they are largely instruments for international travel. The answer to that question was established in discovery. As the government explained (emphasis added):
United States citizens encountering emergencies in
foreign countries are identified in cables sent to U.S.
posts abroad by the Directorate for Overseas Citizens
Services by their name, date, and place of birth.
* * *
The "place of birth" specification assists in identifying
the individual, distinguishing that individual from
other persons with similar names and/or dates of
birth, and identifying fraudulent claimants
attempting to use another person's identity. The
information also facilitates retrieval of passport
records to assist the Department in determining
citizenship or notifying next of kin…
All of this has to do with the travel of Americans overseas: helping them, repatriating them, protecting them from fraud, and so forth. That is all clearly part of foreign travel, and thus regulating the manner of identification is necessary to the foreign commerce power.
The particular form of this statute actually has the benefit of making identification more precise, by allowing people born in Jerusalem to elect whether to have "Israel" written. Thus if there are two John Smiths born in Jerusalem on the same day, they could have different identifying information.
It should be noted that if the Jerusalem law is beyond Congress's Art. I powers, as Goldsmith suggests, a 1994 law allowing for "Taiwan" to be listed on passports as a place of birth would also be unconstitutional. It also raises the question of where the Executive would get the power to put this information on passports. If it is entirely exogenous to the purposes of the passport, what law is he executing?
The argument also raises questions about the rest of the passport. The U.S. passport has lots of stuff on it: pictures of landmarks and inspiring quotations. None of this has to do with the movement of people. The current passport, for example, has been criticized as overly colorful and gauche, an embarrassment. Goldsmith's argument would mean that Congress could not, for example, order the government to make only unadorned, just-the-facts passports.
Indeed, one of the quotes in the current passport is about foreign relations—but does not mean Congress cannot demand a passport book free of quotes. Goldsmith's suggested holding, designed to avoid problems, would raise a variety of unexpected difficulties.
It is true that the Court need not and should not make any ruling about the extent of Executive recognition powers. But that is because the passport law does not involve any act of recognition as that notion has been traditionally understood, but rather simply an exercise of enumerated powers.
Addendum: Since part of the government's express purpose for this identifying information is "determining citizenship," that should also put it in the ambit of the Immigration and Naturalization powers.
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