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Volokh Conspiracy

Zivotofsky is not about recognition (II)


Continuing the discussion from the last post about Zivotofsky v. Kerry, and recent arguments that it exceeds Art. I powers. A central component of the view that the law in Zivotofsky either exceeds Congress's Art. I powers or intrudes on the Executive's is that a passport is "official government speech" by the Executive directed at other countries, and thus all parts of it are statements of foreign policy. I think that is wrong in general, and certainly in this context.

1. A major feature of the statute makes it exceedingly difficult to characterize it as official speech about the status of Jerusalem. The law allows citizens born in Jerusalem to choose whether to put "Jerusalem" or "Israel" on their passports. Thus it is if anything the bearer's speech, and Congress is simply allowing the passport to be a "public forum" for citizens, like affinity license plates car.

2. On a practical level, a passport with "Israel" on it would not send any message about sovereignty over the city, because foreign governments looking at a passport would not know if the bearer was born in Jerusalem. One might say, ah, but countries will know there is such a law on the books. Even if that matters, it only underscores that the issue is not the communicative content of the passport, or any action by the Executive.

3. While the passport is in part an official communication to foreign countries, there is a lot of stuff in the passport that is not. Indeed, part of the passport says, as Marty Lederman emphasizes, "The Secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection." But that is one distinct and separate section of the passport, the laissez-passer (pg. 2 of the passport book). It is this part that appears to perform the official communication function of the passport. No other part is addressed from the Secretary of State, nor does this message suggest the whole book is from the Secretary of State. The part that says it is from the secretary is from the secretary, the rest is not.

4. The country of birth is certainly not part of the official communication, and not a necessary part of the passport at all (only being introduced in the 20th century). Indeed, its purpose as admitted by the State Department, is not to communicate to foreign governments, but to facilitate communication within the U.S. government about the bearer. Furthermore, there are other parts to the passport as well. Take, for example, the series of quotes from historical personages. These cannot be taken as official statements of government policy simply because they appear inside the passport. The last page has information about customs, U.S. taxes, and social security. This is not a communication to foreign countries, who are not eligible for social security, but to U.S. citizens. Indeed, if one wants to get semantic, the laissez-passer says "permit the citizen/national… named herein," and thus incorporates by reference only one of the various identifying pieces of information on the next page, and conspicuously not the country of birth.

5. Finally, one might add that if the Executive wishes to make clear that it is not a recognition, he can do this in a number of ways, like publicly saying "we do not recognize Israeli sovereignty," or, putting below the "country of birth" line a big disclaimer "this does not constitute a statement about recognition or sovereignty"—nothing in the statute prohibits that. Indeed, the Executive already publishes an official document identifying Jerusalem as being in Israel, accompanied by a similar disclaimer, and no untoward foreign policy consequences.