 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 19, 2013                 Decided July 23, 2013

                        No. 07-5347

           MENACHEM BINYAMIN ZIVOTOFSKY,
BY HIS PARENTS AND GUARDIANS ARI Z. AND NAOMI SIEGMAN
                     ZIVOTOFSKY,
                      APPELLANT

                             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 the appellant. Alyza
D. Lewin was on brief.

    Robert G. Kidwell was on brief for amici curiae
Anti-Defamation League et al. in support of the appellant.

    David I. Schoen was on brief for amicus curiae Zionist
Organization of America in support of the appellant.

    Paul Kujawsky was on brief for amicus curiae American
Association of Jewish Lawyers and Jurists in support of the
appellant.
                               2

     Gregory E. Ostfeld, Elliot H. Scherker and Marc Stern
were on brief for amicus curiae American Jewish Committee
in support of the appellant.

    Theodore B. Olson was on brief for amici curiae
Members of United States Senate et al. in support of the
appellant.

     Dana Kaersvang, Attorney, United States Department of
Justice, argued the cause for the appellee. Stuart F. Delery,
Acting Assistant Attorney General, Ronald C. Machen, Jr.,
United States Attorney, and Harold Hongju Koh, Legal
Adviser, United States Department of State, were on brief.
Lewis Yelin and Douglas N. Letter, Attorneys, United States
Department of Justice, and R. Craig Lawrence, Assistant
United States Attorney, entered appearances.

    Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

    Opinion for the Court filed by Circuit Judge HENDERSON.

    Concurring opinion filed by Circuit Judge TATEL.

     KAREN LECRAFT HENDERSON, Circuit Judge: Section
214(d) of the Foreign Relations Authorization Act, Fiscal
Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, requires the
Secretary (Secretary) of the United States Department of State
(State Department) to record “Israel” as the place of birth on
the passport of a United States citizen born in Jerusalem if the
citizen or his guardian so requests. Id. § 214(d), 116 Stat. at
1366. The Secretary has not enforced the provision, believing
that it impermissibly intrudes on the President’s exclusive
authority under the United States Constitution to decide
whether and on what terms to recognize foreign nations. We
                               3
agree and therefore hold that section               214(d)    is
unconstitutional.
                  I. BACKGROUND
     The status of the city of Jerusalem is one of the most
contentious issues in recorded history. For more than two
millennia, the city has been won and lost by a host of
sovereigns. The controversy continues today as the state of
Israel and the Palestinian people both claim sovereignty over
the city. It is against this background that the dispute in this
case arises.
     Since the middle of the twentieth century, United States
Presidents have taken a position of strict neutrality on the
issue of which sovereign controls Jerusalem. After Israel
declared its independence in 1948, President Harry S Truman
promptly recognized it as a foreign sovereign. See Robert J.
Reinstein, Recognition: A Case Study on the Original
Understanding of Executive Power, 45 U. RICH. L. REV. 801,
804 (2011). Nevertheless, Presidents from Truman on have
consistently declined to recognize Israel’s—or any
country’s—sovereignty over Jerusalem. When Israel
announced in 1948 that it intended to convene the inaugural
meeting of its Parliament in a part of Jerusalem that it
controlled, the United States declined to send a representative
to attend the ceremonies; a State Department cable explained
that “the United States cannot support any arrangement which
would purport to authorize the establishment of Israeli . . .
sovereignty over parts of the Jerusalem area.” Shlomo
Slonim, Jerusalem in America’s Foreign Policy, 1947-1997 at
123 (1998). During United Nations proceedings in 1967, the
United States ambassador stated that the “continuing policy of
the United States Government” was that “the status of
Jerusalem . . . should be decided not unilaterally but in
consultation with all concerned.” U.N. GAOR, 5th
Emergency Sess., 1554th plen. mtg. ¶¶ 98-99, U.N. Doc.
                               4
A/PV.1554 (July 14, 1967) (quotation marks omitted). As the
Secretary summarized in response to interrogatories proposed
in this case:
    Within the framework of this highly sensitive, and
    potentially volatile, mix of political, juridical, and
    religious considerations, 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.
Def.’s Resps. to Pl.’s Interrogs. at 9, Zivotofsky ex rel.
Zivotofsky v. Sec’y of State, No. 03-cv-1921 (D.D.C. June 5,
2006) (Joint Appendix (JA) 59). Therefore, “[t]he United
States, like nearly all other countries, maintains its [Israeli]
embassy in Tel Aviv,” id. at 8 (JA 58) (quotation marks
omitted), not Jerusalem.
     The State Department’s Foreign Affairs Manual (FAM)
contains passport administration rules that reflect the policy of
neutrality. The FAM first directs in detail how the applicant’s
birthplace is to be stated on his passport. “As a general rule,
enter the country of the applicant’s birth in the [place of birth
field on the] passport.” 7 FAM 1383.1 (2002) (JA 111).1 If,
however, the applicant was born “in territory disputed by
another country, the city or area of birth may be written” in
lieu of the country. 7 FAM 1383.5-2 (JA 113). Similarly, an
applicant may request that his passport list the “city or town,
rather than the country, of [his] birth.” 7 FAM 1383.6(a) (JA


    1
      All FAM provisions cited herein refer to the 2002 version,
which was in effect during the relevant events.
                               5
115). Regarding Jerusalem, the FAM sets forth a detailed
policy:
    For applicants born before May 14, 1948 in a place
    that was within the municipal borders of Jerusalem,
    enter JERUSALEM as their place of birth. For
    persons born before May 14, 1948 in a location that
    was outside Jerusalem’s municipal limits and later
    was annexed by the city, enter either PALESTINE or
    the name of the location (area/city) as it was known
    prior to annexation. For persons born after May 14,
    1948 in a location that was outside Jerusalem’s
    municipal limits and later was annexed by the city, it
    is acceptable to enter the name of the location
    (area/city) as it was known prior to annexation . . . .
7 FAM 1383.5-6 (JA 115). The FAM specifically provides
that, for an applicant born in Jerusalem: “Do not write Israel
or Jordan” on his passport and, further, that Israel “[d]oes not
include Jerusalem . . . .” 7 FAM 1383 Ex. 1383.1 pt. II (JA
127). In sum, the State Department must record
“Jerusalem”—not “Jerusalem, Israel” or “Israel”—as the
place of birth on the passport for an applicant born in
Jerusalem after 1948.
     Recently, the Congress has attempted to alter the
Executive branch’s consistent policy of neutrality. In 1995, it
enacted the Jerusalem Embassy Act, which provides that
“Jerusalem should be recognized as the capital of the State of
Israel”; “the United States Embassy in Israel should be
established in Jerusalem no later than May 31, 1999”; and
“[n]ot more than 50 percent of the funds appropriated to the
Department of State for fiscal year 1999 for ‘Acquisition and
Maintenance of Buildings Abroad’ may be obligated until the
Secretary of State determines and reports to Congress that the
United States Embassy in Jerusalem has officially opened.”
Pub. L. No. 104-45, § 3(a)-(b), 109 Stat. 398, 399 (1995)
                               6
(enacted into law without President’s signature). During the
Congress’s consideration of the legislation, the Executive
branch communicated with the Congress regarding its
constitutionality. See 164 CONG. REC. S15,463 (daily ed. Oct.
23, 1995). The United States Department of Justice (DOJ) via
an assistant attorney general wrote to the White House
Counsel: “It is well settled that the Constitution vests the
President with the exclusive authority to conduct the Nation’s
diplomatic relations with other States,” that “the President’s
recognition power is exclusive” and that “[t]he proposed bill
would severely impair the President’s constitutional authority
to determine the form and manner of the Nation’s diplomatic
relations.” Id. at S15,468. The DOJ official explained that his
conclusions were “not novel”; for example, “[t]he Reagan
Administration objected in 1984 to a bill to compel the
relocation of the United States Embassy from Tel Aviv to
Jerusalem, on the grounds that the decision was so closely
connected with the President’s exclusive constitutional power
[and] responsibility to recognize, and to conduct ongoing
relations with, foreign governments as to, in our view, be
beyond the proper scope of legislative action.” Id. at S15,469
(quotation marks omitted). Similarly, the then-Secretary
expressed opposition to the legislation in a letter to the Senate
Majority Leader. Id. The Secretary explained that “[t]here is
no issue related to the Arab-Israeli negotiations that is more
sensitive than Jerusalem” and “any effort by Congress to
bring it to the forefront is ill-advised and potentially very
damaging to the success of the peace process.” Id. He echoed
the DOJ official’s doubts regarding the bill’s constitutionality.
Id. Ultimately, the Congress enacted the legislation with a
waiver provision authorizing the President to suspend the
funding restriction for six-month periods to “protect the
national security interests of the United States.” Pub. L. No.
104-45 § 7, 109 Stat. at 400.
                                   7
    On September 30, 2002, President George W. Bush
signed into law the Foreign Relations Authorization Act,
Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350.
Section 214(d) is the provision at issue and it provides:
    (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), 116 Stat. at 1366.2 When the President signed
the Act, however, he also issued a signing statement, noting


    2
        Section 214 provides in full:
    SEC. 214. UNITED STATES POLICY WITH RESPECT TO
    JERUSALEM AS THE CAPITAL OF ISRAEL.
    (a) CONGRESSIONAL STATEMENT OF POLICY.—The
    Congress maintains its commitment to relocating the United
    States Embassy in Israel to Jerusalem and urges the President,
    pursuant to the Jerusalem Embassy Act of 1995 (Public Law
    104–45; 109 Stat. 398), to immediately begin the process of
    relocating the United States Embassy in Israel to Jerusalem.
    (b) LIMITATION ON USE OF FUNDS FOR CONSULATE
    IN JERUSALEM.—None of the funds authorized to be
    appropriated by this Act may be expended for the operation of
    a United States consulate or diplomatic facility in Jerusalem
    unless such consulate or diplomatic facility is under the
    supervision of the United States Ambassador to Israel.
    (c) LIMITATION ON USE OF FUNDS FOR
    PUBLICATIONS.—None of the funds authorized to be
    appropriated by this Act may be available for the publication
    of any official government document which lists countries and
                                   8
that “the Act contains a number of provisions that
impermissibly interfere with the constitutional functions of
the presidency in foreign affairs,” including section 214:
    Section 214, concerning Jerusalem, impermissibly
    interferes with the President’s constitutional
    authority to conduct the Nation’s foreign affairs and
    to supervise the unitary executive branch. Moreover,
    the purported direction in section 214 would, if
    construed as mandatory rather than advisory,
    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. U.S.
    policy regarding Jerusalem has not changed.
Statement on Signing the Foreign Relations Authorization
Act, Fiscal Year 2003, 2002 WL 31161653 (Sept. 30, 2002).
     Menachem Zivotofsky (Zivotofsky) is a United States
citizen born in 2002 in Jerusalem to parents who are United
States citizens. Compl. ¶¶ 2-5, Zivotofsky ex rel. Zivotofsky v.
Sec’y of State, No. 03-cv-1921 (D.D.C. Sept. 16, 2003) (JA 8-
9); see also 8 U.S.C. § 1401(c) (making “national[ ] and
citizen[ ] of the United States at birth . . . a person born

     their capital cities unless the publication identifies Jerusalem
     as the capital of Israel.
     (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.
Pub. L. No. 107-228 § 214, 116 Stat. at 1365-66.
                                   9
outside of the United States and its outlying possessions of
parents both of whom are citizens of the United States and
one of whom has had a residence in the United States or one
of its outlying possessions, prior to the birth of such person”).
In 2002, Zivotofsky’s mother applied for a United States
passport for Zivotofsky, listing his birthplace as “Jerusalem,
Israel.” Id. ¶ 8 (JA 9). The State Department, however,
following its Jerusalem policy set forth in 7 FAM 1383.5-6,
issued a passport in Zivotofsky’s name listing “Jerusalem” as
his place of birth. Id.
     On September 16, 2003, Zivotofsky, “by his parents and
guardians, Ari Z. and Naomi Siegman Zivotofsky,” brought
suit against the Secretary, seeking, inter alia, declaratory
relief and a permanent injunction ordering the Secretary to
issue him a passport listing “Jerusalem, Israel” as his place of
birth. Id. at 3 (JA 10).3 The litigation has been up and down
the appellate ladder. First, on September 7, 2004, the district
court dismissed the case, concluding that Zivotofsky lacked
Article III standing and, alternatively, that the case presented
a nonjusticiable political question. Zivotofsky ex rel.
Zivotofsky v. Sec’y of State, No. 03-cv-1921, 2004 WL
5835212 (D.D.C. Sept. 7, 2004). We subsequently reversed
and remanded, holding that Zivotofsky had standing.4
Zivotofsky ex rel. Zivotofsky v. Sec’y of State, 444 F.3d 614
(D.C. Cir. 2006). We noted that Zivotofsky had amended the
injunctive relief he initially sought, requesting that the
    3
       Zivotofsky’s complaint alleged that the State Department
also improperly recorded his place of birth on his consular report of
birth abroad as “Jerusalem.” At oral argument, however,
Zivotofsky’s counsel made clear that he raised no legal argument
distinguishing the consular report of birth abroad from the passport.
Oral Arg. Tr. 23-24.
    4
        We did not reach the political question issue.
                               10
Secretary record “Israel” instead of “Jerusalem, Israel” as his
place of birth on his passport. Id. at 616 n.1. Because “[t]he
case . . . no longer involve[d] the claim the district court
considered,” we “remand[ed] the case to the district court so
that both sides may develop a more complete record relating
to these and other subjects of dispute.” Id. at 619-20.
     On September 19, 2007, the district court again dismissed
the case, once more deciding it presented a nonjusticiable
political question. Zivotofsky ex rel. Zivotofsky v. Sec’y of
State, 511 F. Supp. 2d 97 (D.D.C. 2007) (Zivotofsky III). We
affirmed, concluding that “[b]ecause 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.” Zivotofsky v. Sec’y of State,
571 F.3d 1227, 1228 (D.C. Cir. 2009) (Zivotofsky IV).5
     The United States Supreme Court vacated and remanded,
holding that the case does not present a political question.
Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421
(2012) (Zivotofsky V). The Court explained that “[t]he federal
courts are not being asked to supplant a foreign policy
decision of the political branches . . . . [i]nstead, Zivotofsky
requests that the courts enforce a specific statutory right.” Id.
at 1427. Given that the parties do not dispute the substance of
section 214(d), that is, its requirement that “Israel” be
recorded on the passport as the applicant’s birthplace at his
request, “the only real question for the courts is whether the
statute is constitutional,” which requires “deciding whether
the statute impermissibly intrudes upon Presidential powers
under the Constitution.” Id. at 1427-28. The Court further

    5
       Senior Judge Edwards concurred, noting that he would have
rejected Zivotofsky’s claim on the merits. Zivotofsky IV, 571 F.3d
at 1233-34 (Edwards, J., concurring).
                              11
explained that “[r]esolution of Zivotofsky’s claim demands
careful examination of the textual, structural, and historical
evidence put forward by the parties regarding the nature of the
statute and of the passport and recognition powers.” Id. at
1430.
                       II. THE MERITS
     Before addressing the merits, we address two preliminary
matters. First, Zivotofsky argues that we must “ ‘not pass
upon a constitutional question although properly presented by
the record, if there is also present some other ground upon
which the case may be disposed of.’ ” United States v.
Brinson-Scott, 714 F.3d 616, 621 (D.C. Cir. 2013) (quoting
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring)). Zivotofsky maintains that we
should not reach the Secretary’s constitutional defense
because section 214(d) constitutes permissible passport
legislation. But Zivotofsky’s proposed solution—that we hold
in effect that the President’s constitutional recognition power
is not so broad as to encompass section 214(d)—is a
constitutional holding. We would not avoid “pass[ing] upon a
constitutional question” by resolving the case in that manner;
instead we would give the President’s constitutional power
the narrow construction Zivotofsky presses. Moreover, the
Supreme Court has specifically instructed us to examine “the
textual, structural, and historical evidence . . . regarding the
nature . . . of the passport and recognition powers.” Zivotofsky
V, 132 S. Ct. at 1430.
     Second, in Youngstown Sheet & Tube Company v.
Sawyer, 343 U.S. 579 (1952), Justice Jackson set forth a
tripartite framework for evaluating the President’s powers to
act depending on the level of congressional acquiescence. Id.
at 635 (Jackson, J., concurring); see also Medellin v. Texas,
552 U.S. 491, 524 (2008) (“Justice Jackson’s familiar
tripartite scheme provides the accepted framework for
                                12
evaluating executive action in this area.”). First, “[w]hen the
President acts pursuant to an express or implied authorization
of Congress, his authority is at its maximum, for it includes
all that he possesses in his own right plus all that Congress
can delegate.” Youngstown, 343 U.S. at 635. Second, “[w]hen
the President acts in absence of either a congressional grant or
denial of authority, he can only rely upon his own
independent powers, but there is a zone of twilight in which
he and Congress may have concurrent authority, or in which
its distribution is uncertain.” Id. at 637. Third, “[w]hen the
President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb, for
then he can rely only upon his own constitutional powers
minus any constitutional powers of Congress over the
matter.” Id. Both parties agree that this case falls into category
three. In this category the President may nonetheless
exercise—and the Congress cannot invade—the President’s
“exclusive power.” Id. at 637 n.4. The question here is
whether exclusive Executive branch power authorizes the
Secretary to decline to enforce section 214(d).
                  A. The Recognition Power
     Recognition is the act by which “a state commits itself to
treat an entity as a state or to treat a regime as the government
of a state.” RESTATEMENT (SECOND) OF FOREIGN RELATIONS
LAW § 94(1). “The rights and attributes of sovereignty belong
to [a state] independently of all recognition, but it is only after
it has been recognized that it is assured of exercising them.” 1
John Bassett Moore, A Digest of International Law § 27, at 72
(1906) (MOORE’S INT’L LAW DIGEST). Recognition is
therefore a critical step in establishing diplomatic relations
with the United States; if the United States does not recognize
a state, it means the United States is “unwilling[] to
acknowledge that the government in question speaks as the
sovereign authority for the territory it purports to control.”
                              13
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410
(1964). Recognition also confers other substantial benefits.
For example, a recognized sovereign generally may (1)
maintain a suit in a United States court, see id. at 408-09;
Guaranty Trust Co. v. United States, 304 U.S. 126, 137
(1938); (2) assert the sovereign immunity defense in a United
States court, see Nat’l City Bank v. Republic of China, 348
U.S. 356, 359 (1955); and (3) benefit from the “act of state”
doctrine, which provides that “[e]very sovereign state is
bound to respect the independence of every other sovereign
state, and the courts of one country will not sit in judgment on
the acts of the government of another done within its own
territory,” Oetjen v. Cent. Leather Co., 246 U.S. 297, 303
(1918) (quotation marks omitted).
    A government typically recognizes a foreign state by
“written or oral declaration.” 1 MOORE’S INT’L LAW DIGEST
§ 27, at 73. Recognition may also be implied as “when a
[recognizing] state enters into negotiations with the new state,
sends it diplomatic agents, receives such agents officially,
gives exequaturs to its consuls, [and] forms with it
conventional relations.”6 Id.; see also David Gray Adler, The
President’s Recognition Power, reprinted in The Constitution
and the Conduct of American Foreign Policy 133 (David
Gray Adler & Larry N. George eds., 1996) (“At international
law, the act of receiving an ambassador of a foreign
government entails certain legal consequences. The reception
of an ambassador constitutes a formal recognition of the
sovereignty of the state or government represented.”).

    6
       An exequatur is a “document from the host country [to a
foreign consul] that permits the consul to take up consular
functions.” Saikrishna B. Prakash & Michael D. Ramsey, The
Executive Power Over Foreign Affairs, 111 YALE L.J. 231, 313
(2001).
                                 14
     As noted earlier, the Supreme Court has directed us to
examine the “textual, structural, and historical evidence” the
parties have marshaled regarding “the nature . . . of the
passport and recognition powers.” Zivotofsky V, 132 S. Ct. at
1430. We first address the recognition power and, in
particular, whether the power is held exclusively by the
President.
         B. The President and the Recognition Power
                  Text and Originalist Evidence
    Neither the text of the Constitution nor originalist
evidence provides much help in answering the question of the
scope of the President’s recognition power. In support of his
view that the recognition power lies exclusively with the
President, the Secretary cites the “receive ambassadors”
clause of Article II, Section 3 of the Constitution, which
provides, inter alia, that the President “shall receive
Ambassadors and other public Ministers.” U.S. CONST., art II,
§ 3. But the fact that the President is empowered to receive
ambassadors, by itself, does not resolve whether he has the
exclusive authority to recognize foreign nations. Some
scholars have suggested other constitutional provisions as
possible sources of authority for the President to exercise the
recognition power but conclude that the text of those
provisions does not itself resolve the issue.7

     7
        See, e.g., Reinstein, supra, at 809 & n.48, 810-11, 816
(discussing, but finding inconclusive, text of U.S. CONST., art. II, §
1, cl. 1 (“The executive Power shall be vested in a President of the
United States of America.”); U.S. CONST., art. II, § 2, cl. 2
(President “shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors[ and] other
public Ministers and Consuls”); U.S. CONST., art. II, § 3
(“[President] shall take Care that the Laws be faithfully executed”)
                                  15
     Originalist evidence also fails to clarify the Constitution’s
text. The Federalist Papers contain no mention of the
recognition power although Federalist No. 69, written by
Alexander Hamilton under the pseudonym “Publius,” refers to
the “receive ambassadors” clause. Writing in 1788, Hamilton
characterized the clause as virtually meaningless:
     [T]hough it has been a rich theme of declamation,8
     [it] is more a matter of dignity than of authority[,] . .
     . . a circumstance which will be without consequence
     in the administration of the government; and it was
     far more convenient that it should be arranged in this
     manner, than that there should be a necessity of
     convening the legislature, or one of its branches,
     upon every arrival of a foreign minister; though it
     were merely to take the place of a departed
     predecessor.
Alexander Hamilton, Federalist No. 69, reprinted in The
Federalist 360 (George W. Carey & James McLellan eds.
2001). The President’s power to receive ambassadors may of
necessity mean that he has the power not only to “receive” a
foreign ambassador but also to decide whether and when to

as compared with legislative powers set forth in U.S. CONST., art. I,
§ 8, cls. 3, 4, 11, 18 (“The Congress shall have Power To . . .
regulate Commerce with foreign Nations, . . . establish an uniform
Rule of Naturalization, . . . declare War . . . [and] make all Laws
which shall be necessary and proper for carrying into Execution the
foregoing Powers”)); see also Prakash & Ramsey, supra, at 234-35,
253, 316-17 (interpreting Executive Vesting Clause, U.S. CONST.,
art. II, § 1, cl. 1., and using, inter alia, eighteenth-century meaning
of executive power).
     8
      Scholars, it appears, have been unable to confirm Hamilton’s
claim that the “receive ambassadors” clause “has been a rich theme
of declamation.” See Reinstein, supra, at 845-46.
                                16
receive him.9 In fact, five years after writing Federalist No.
69, Hamilton adopted this interpretation of the “receive
ambassadors” clause. In 1793, while serving in President
George Washington’s cabinet, Hamilton, then writing as
“Pacificus,” declared that the clause gave the President the
power to determine whether the government sending the
ambassador should be recognized by the United States.
United States National Archives, Pacificus No. 1 (June 29,
1793), available at http://founders.archives.gov/documents/
Hamilton/01-15-02-0038. Hamilton explained that “[t]he
Legislative Department is not the organ of intercourse
between the UStates and foreign Nations. . . . It is therefore
not naturally that Organ of the Government which is to
pronounce the existing condition of the Nation, with regard to
foreign Powers . . . .” Id. Rather, “[t]he right of the Executive
to receive ambassadors and other public Ministers . . . .
includes that of judging, in the case of a Revolution of
Government in a foreign Country, whether the new rulers are
competent organs of the National Will and ought to be
recognised or not.” Id.
    There is little other ratification-era evidence regarding the
recognition of foreign governments. In fact, “there is no
record that the subject of recognizing foreign states or
governments ever came up in the [Constitutional]
Convention.” Reinstein, supra, at 845. One scholar offers two
explanations for this gap. First, he suggests that “the founders
carefully enumerated the powers of the President and

    9
       According to the Restatement, when the President receives
an ambassador, he recognizes by implication the sovereignty of the
sending foreign government. See, e.g., RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW § 204, Reporters’ Note 2 (“Recognition
of a state has been effected by . . . receiving the credentials of a
diplomatic representative of that state.”).
                               17
deliberately omitted the recognition power.” Id. at 860. But if
this were the case, it would be unclear which branch, if any,
possessed the power. His second explanation is more
plausible: “Whether the European nations would accept the
United States into their community was of considerable
importance to the new nation, but whether the United States
would ‘recognize’ the European nations was a non[
]sequitur.” Id. at 861. In other words, the Framers apparently
were not concerned with how their young country recognized
other nations because the issue was not important to them at
the time of ratification.
                   Post-ratification History
     Both parties make extensive arguments regarding the
post-ratification recognition history of the United States. As
the Supreme Court has explained, longstanding and consistent
post-ratification practice is evidence of constitutional
meaning. See, e.g., Republican Party of Minn. v. White, 536
U.S. 765, 785 (2002) (“[A] universal and long-established
tradition of prohibiting certain conduct creates a strong
presumption that the prohibition is constitutional . . . .”
(quotation marks omitted)); Mistretta v. United States, 488
U.S. 361, 401 (1989) (“Our 200-year tradition of extrajudicial
service is additional evidence that the doctrine of separated
powers does not prohibit judicial participation in certain
extrajudicial activity.”); Marsh v. Chambers, 463 U.S. 783,
790 (1983) (“two centuries of national practice,” including
practice     authorized     by   first    Congress,     provides
“contemporaneous and weighty evidence” of constitutionality
(quotation marks omitted)). We conclude that longstanding
post-ratification practice supports the Secretary’s position that
the President exclusively holds the recognition power.
    Beginning with the administration of our first President,
George Washington, the Executive has believed that it has the
exclusive power to recognize foreign nations. In 1793,
                               18
President Washington’s cabinet unanimously concluded that
Washington need not consult with the Congress before
receiving the minister from France’s post-revolutionary
government, notwithstanding his receiving the minister
recognized the new government by implication. Saikrishna B.
Prakash & Michael D. Ramsey, The Executive Power Over
Foreign Affairs, 111 YALE L.J. 231, 312 (2001). Nor did the
Congress “purport[ ] to tell Washington which countries or
governments to recognize.” Id. at 312-13. The Washington
administration also took sole control of issuing exequaturs to
foreign consuls. Id. at 313 (President Washington “not only
signed exequaturs, he also set policy respecting their
issuance” (footnote omitted)); see also 3 Thomas Jefferson,
Memoir, Correspondence, and Miscellanies from the Papers
of Thomas Jefferson 298 (Thomas Jefferson Randolph ed.
1829) (“[T]he commission of consul to M. Dannery ought to
have been addressed to the President of the United States. He
being the only channel of communication between this
country and foreign nations, it is from him alone that foreign
nations or their agents are to learn what is or has been the will
of the nation . . . .” (emphases added)).
     In 1817, President James Monroe prevailed in a standoff
with Speaker of the House Henry Clay over the recognition
power. Clay had announced that he “intended moving the
recognition of Buenos Ayres and probably of Chile.” Julius
Goebel, Jr. The Recognition Policy of the United States 121
(1915). But when Clay attempted to amend an appropriations
bill to appropriate $18,000 for an American minister to be
sent to South America, id. at 123-24, he was forced to modify
the amendment to manifest that the decision whether to send
the minister belonged to the President, see 32 ANNALS OF
CONGRESS 1498-1500 (1818). And, in fact, even Clay’s
weakened amendment was defeated in the House; “the reason
for the defeat appears to have been that the amendment was
interfering with the functions of the executive.” Goebel,
                                 19
supra, at 124; see also 32 ANNALS OF CONG. 1538 (1818)
(statement of Rep. Smith) (“The Constitution has given . . . to
the President the direction of our intercourse with foreign
nations. It is not wise for us to interfere with his powers
. . . .”); id. at 1570 (statement of Rep. Smyth) (“[T]he
acknowledgement of the independence of a new Power is an
exercise of Executive authority; consequently, for Congress to
direct the Executive how he shall exercise this power, is an
act of usurpation.”). According to Goebel, Clay’s defeat
“meant a great increase of strength for the administration”
because “it had received a direct confirmation of its ultimate
right to determine whether a government was to be
recognized.” Goebel, supra, at 124.
    In 1864 and, again, 1896, the Executive branch
challenged the individual houses of the Congress for intruding
into the realm of recognition, which eventually led the
Congress to refrain from acting. In 1864, the House passed a
resolution asserting that it did not acknowledge Archduke
Ferdinand Maximilian von Habsburg as the Emperor of
Mexico. CONG. GLOBE, 38TH CONG., 1ST SESS. 1408 (1864).
The then-Secretary wrote to the United States Minister to
France, stating that the recognition authority is “purely
executive,” belonging “not to the House of Representatives,
nor even to Congress, but to the President.” Id. at 2475. The
Senate ultimately did not act on the bill.10 In 1896, the Senate
Foreign Relations Committee presented a joint resolution to

     10
        The House subsequently passed a resolution that stated, in
pertinent part, “Congress has a constitutional right to an
authoritative voice in declaring and prescribing the . . . recognition
of new Powers as in other matters . . . .” CONG. GLOBE, 38TH
CONG., 2D SESS. 65-67 (1864). The Senate never acted on the
resolution. Edward S. Corwin, The President’s Control of Foreign
Relations at 42-43 (1917).
                              20
the full Senate purporting to recognize Cuba’s independence.
29 CONG. REC. 326, 332 (1896). The then-Secretary
responded with a statement that the power to “recognize the
so-called Republic of Cuba as an independent State rests
solely with the Executive”; a joint resolution would have only
“advice of great weight.” Eugene V. Rostow, Great Cases
Make Bad Law: The War Powers Act, 50 TEX. L. REV. 866-67
(1972) (quotation marks omitted); see also Congress
Powerless, N.Y. TIMES, Dec. 19, 1896, available at http://
query.nytimes.com/mem/archive-free/pdf?res=F10D13F73B5
F1B738DDDA90A94DA415B8685F0D3. Again, the Senate
did not act on the proposed joint resolution.
     In 1919, the Congress once again relented in response to
the President’s assertion of exclusive recognition power. That
year, the Senate considered a resolution which recommended
withdrawing recognition of the then-existing Mexican
government. PRELIM. REPORT & HR’GS OF THE SEN. COMM.
ON FOREIGN RELATIONS, INVESTIGATION OF MEXICAN
AFFAIRS, S. DOC. NO. 66-285, at 843D (2d. Sess. 1919-20). In
response, President Woodrow Wilson informed the Congress
that the resolution, if enacted, would “constitute a reversal of
our constitutional practice which might lead to very grave
confusion in regard to the guidance of our foreign affairs”
because “the initiative in directing the relations of our
Government with foreign governments is assigned by the
Constitution to the Executive, and to the Executive, only.” Id.
“Within half an hour of the letter’s receipt[,] Senator Lodge,
Chairman of the Foreign Relations Committee, announced
that the [ ] resolution was dead. President Wilson, Mr. Lodge
said, must now accept entire responsibility for Mexican
relations.” Wilson Rebuffs Senate on Mexico, N.Y. TIMES,
Dec. 8, 1919, available at http://query.nytimes.com/mem/
archive-free/pdf?res=9C00E2DD123BEE32A2575AC0A964
9D946896D6CF.
                                21
     Zivotofsky marshals several isolated events in support of
his position that the recognition power does not repose solely
in the Executive but they are unconvincing. First, Zivotofsky
argues that in 1898 the Senate passed a joint resolution stating
“the Government of the United States hereby recognizes the
Republic of Cuba as the true and lawful Government of that
Island.” Br. for Appellant 42. But review of the Congressional
Record shows that the quoted language was not included in
the joint resolution; rather, it was included in a proposed joint
resolution in the Senate. See 31 CONG. REC. 3988 (1898). And
the proposed resolution raised separation-of-powers concerns
with many Senators. See id. at 3990 (statement of Sen.
Gorman) (“I regret exceedingly . . . for the first time in the
history of the country, this great body should incorporate . . . a
power which has been disputed by every Executive from
Washington down—the right of Congress by law to provide
for the recognition of a state.”); id. at 3991 (statement of Sen.
Allison (calling amendment “contravention of . . . well-settled
principles” and Executive “alone can deal with this question
in its final aspects”); id. at 3991-92 (statement of Sen.
Aldrich) (“We have no right at such a time to exercise
functions that belong to the Executive.”). When the House
received the proposed joint resolution, it removed the
recognition clause. See id. at 4080. The joint resolution, as
passed, stated only that “the people” of Cuba were “free and
independent.” See 30 Stat. 738 (Apr. 20, 1898).11
   Zivotofsky also relies on events that occurred during the
administrations of President Andrew Jackson and President

    11
        The joint resolution provided in full: “Resolved by the
Senate and House of Representatives of the United States of
America in Congress assembled, First. That the people of the Island
of Cuba are, and of right ought to be, free and independent.” 30
Stat. 738 (Apr. 20, 1898).
                               22
Abraham Lincoln. In both instances, however, the Congress
did not attempt to exercise the recognition power. Instead, it
authorized appropriations to be used by the President to
dispatch diplomatic representatives. In 1836, President
Jackson expressed a desire to “unite” with the Congress
before recognizing Texas as independent from Mexico.
MESSAGE FROM THE PRESIDENT OF THE UNITED STATES UPON
THE SUBJECT OF THE POLITICAL, MILITARY, AND CIVIL
CONDITION OF TEXAS, H.R. DOC. NO. 24-35, at 4 (2d Sess.
1836). But in doing so, Jackson did not suggest that he lacked
the exclusive recognition power. See id. at 2 (“[O]n the
ground of expediency, I am disposed to concur, and do not,
therefore, consider it necessary to express any opinion as to
the strict constitutional right of the Executive, either apart
from or in conjunction with the Senate, over the subject.”).
Rather, Jackson merely enlisted the support of the Congress
as a matter of political prudence. In any event, the Congress
did not attempt to exercise the recognition power on its own.
Instead, the Congress appropriated funds for the President to
authorize a “diplomatic agent to be sent to the Republic of
Texas, whenever the President of the United States . . . shall
deem it expedient to appoint such minister.” 5 Stat. 107
(1837). Similarly, President Lincoln expressed a desire to
coordinate with the Congress by requesting that it use its
appropriations authority to endorse his recognition of Liberia
and Haiti. See Lincoln’s First Annual Message to Congress
(Dec. 3, 1861), available at http://www.presidency.ucsb.edu/
ws/?pid=29502. And the Congress subsequently did so. 12
Stat. 421.12

    12
        Zivotofsky also calls our attention to the recognition of
Hungary during President Zachary Taylor’s administration. The
Secretary wrote to the President’s appointed minister to Hungary:
“Should the new government prove to be, in your opinion, firm and
                                23
                    Supreme Court Precedent
    It is undisputed that “in the foreign affairs arena, the

stable, the President will cheerfully recommend to Congress, at
their next session, the recognition of Hungary.” Letter from Clayton
to Mann (June 18, 1849), reprinted in 1 MOORE’S INT’L L. DIGEST
§ 75, at 246. Zivotofsky argues that the letter manifests Taylor’s
uncertainty regarding his exclusive recognition authority. But
another communication from President Taylor made clear that he
understood that he was authorized to recognize Hungary without
the Congress. See 5 A Compilation of the Messages and Papers of
the Presidents, 1789-1897 at 12 (James D. Richardson ed. 1897)
(State of the Union address) (“I thought it my duty, in accordance
with the general sentiment of the American people, . . . to stand
prepared, upon the contingency of the establishment by her of a
permanent government, to be the first to welcome independent
Hungary into the family of nations. For this purpose I invested an
agent then in Europe with power to declare our willingness
promptly to recognize her independence in event of her ability to
sustain it.” (emphasis added)). Whatever Taylor’s uncertainty, it
sounds alone in stark contrast to otherwise seamless post-
ratification history.
     In addition, Amicus American Jewish Committee supplies
other examples of Presidential enlistment of the Congress’s
support. See, e.g., Am. Jewish Committee Amicus Br. at 9-10
(Washington considered removing diplomatic authority of France’s
minister and instructed Thomas Jefferson to draft message stating
he intended to remove Genet’s diplomatic authority unless either
house objected). None of them acknowledge either expressly or by
implication that the recognition power was one shared, under the
Constitution, with the Congress. We are also unpersuaded by
amicus’s citation to Secretary of State James Buchanan’s
observation that “recognition is usually effected, either by a
nomination to, and confirmation by the Senate of a Diplomatic or
Consular agent to the new Government, or by an act of Congress.”
1 MOORE’S INT’L L. DIGEST § 75, at 245-46.
                              24
President has ‘a degree of discretion and freedom from
statutory restriction which would not be admissible were
domestic affairs alone involved.’ ” Clinton v. City of New
York, 524 U.S. 417, 445 (1998) (quoting United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).
While the President’s foreign affairs powers are not precisely
defined, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 634-35 (1952) (Jackson, J., concurring), the courts have
long recognized the President’s presumptive dominance in
matters abroad. See, e.g., Am. Ins. Ass’n v. Garamendi, 539
U.S. 396, 415 (2003) (“[O]ur cases have recognized that the
President has authority to make ‘executive agreements’ with
other countries, requiring no ratification by the Senate or
approval by Congress, this power having been exercised since
the early years of the Republic.”); Youngstown, 343 U.S. at
610 (President has “vast share of responsibility for the
conduct of our foreign relations”) (Frankfurter, J.,
concurring); Johnson v. Eisentrager, 339 U.S. 763, 789
(1950) (“President is exclusively responsible” for “conduct of
diplomatic and foreign affairs”); Legal Assistance for
Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349,
1353 (D.C. Cir. 1997) (“[C]ourts have been wary of second-
guessing executive branch decision[s] involving complicated
foreign policy matters.”). Thus, the Court, echoing the words
of then-Congressman John Marshall, has described the
President as the “sole organ of the nation in its external
relations, and its sole representative with foreign nations.”
Curtiss-Wright, 299 U.S. at 319 (quoting 10 ANNALS OF
CONG. 613 (Mar. 7, 1800)).
     The Supreme Court has more than once declared that the
recognition power lies exclusively with the President. See
Williams v. Suffolk Ins. Co., 38 U.S. 415, 420 (1839) (“[If] the
executive branch . . . assume[s] a fact in regard to the
sovereignty of any island or country, it is conclusive on the
judicial department[.]”); United States v. Belmont, 301 U.S.
                                25
324, 330 (1937) (“[T]he Executive had authority to speak as
the sole organ of th[e] government” in matters of
“recognition, establishment of diplomatic relations, the
assignment, and agreements with respect thereto . . . .”);
Guaranty Trust Co. v. United States, 304 U.S. 126, 138
(1938) (“We accept as conclusive here the determination of
our own State Department that the Russian State was
represented by the Provisional Government . . . .”); United
States v. Pink, 315 U.S. 203, 229 (1942) (“The powers of the
President in the conduct of foreign relations included the
power, without consent of the Senate, to determine the public
policy of the United States with respect to the Russian
nationalization decrees. . . . [including t]h[e] authority . . . [to
determine] the government to be recognized.”); Baker v.
Carr, 369 U.S. 186, 213 (1962) (“[I]t is the executive that
determines a person’s status as representative of a foreign
government.”); Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398, 410 (1964) (“Political recognition is exclusively a
function of the Executive.”). To be sure, the Court has not
held that the President exclusively holds the power. But, for
us—an inferior court—“carefully considered language of the
Supreme Court, even if technically dictum, generally must be
treated as authoritative,” United States v. Dorcely, 454 F.3d
366, 375 (D.C. Cir. 2006) (quotation marks omitted); see also
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)
(Marshall, C.J.), especially if the Supreme Court has repeated
the dictum, see Overby v. Nat’l Ass’n of Letter Carriers, 595
F.3d 1290, 1295 (D.C. Cir. 2010) (Supreme Court dictum is
“especially” authoritative        if “the Supreme Court has
reiterated the same teaching”).
     In Williams v. Suffolk Insurance Company, the issue
before the Court was whether “the Falkland islands . . .
constitute any part of the dominions within the sovereignty of
the government of Buenos Ayres.” 38 U.S. at 419. The Court
                              26
decided that the President’s action in the matter was
“conclusive on the judicial department.” Id. at 420.
    And can there be any doubt, that when the executive
    branch of the government, which is charged with our
    foreign relations, shall in its correspondence with a
    foreign nation assume a fact in regard to the
    sovereignty of any island or country, it is conclusive
    on the judicial department? And in this view it is not
    material to inquire, nor is it the province of the Court
    to determine, whether the executive be right or
    wrong. It is enough to know, that in the exercise of
    his constitutional functions, he has decided the
    question. Having done this under the responsibilities
    which belong to him, it is obligatory on the people
    and government of the Union.
Id. Similarly, in Banco Nacional de Cuba v. Sabbatino,
without determining whether the United States had de-
recognized Cuba’s government under Fidel Castro, the Court
explained that “[p]olitical recognition is exclusively a
function of the Executive.” 376 U.S. at 410. The Court
emphasized that were it to decide for itself whether Cuba had
been de-recognized, there would be a real “possibility of
embarrassment to the Executive Branch in handling foreign
relations.” Id. at 412.
    President Franklin D. Roosevelt’s 1933 recognition of the
Soviet Union led to three cases supporting the conclusion that
the President exclusively holds the recognition power.
Belmont, 301 U.S. 324; Guaranty Trust, 304 U.S. 126; Pink,
315 U.S. 203. On November 16, 1933, the United States
recognized the Soviet Union as the government of Russia
“and as an incident to that recognition accepted an assignment
(known as the Litvinov Assignment) of certain claims.” Pink,
315 U.S. at 211. Under the Litvinov Assignment, the Soviet
Union agreed to “take no steps to enforce claims against
                               27
American nationals; but all such claims were       released and
assigned to the United States.” Belmont, 301       U.S. at 326.
When the United States sought to collect on        the assigned
claims, its action spawned litigation resulting    in the three
cases.
      In Belmont, the Court held that New York State’s
conflicting public policy did not prevent the United States
from collecting assets assigned by the Litvinov Assignment.
Id. at 330. It noted that “who is the sovereign of a territory is
not a judicial question, but one the determination of which by
the political departments conclusively binds the courts.” Id. at
328 (emphasis added). But the Court then more specifically
explained that “recognition, establishment of diplomatic
relations, the assignment, and agreements with respect
thereto, were all parts of one transaction” and plainly “within
the competence of the President.” Id. at 330 (emphasis
added). Moreover, “in respect of what was done here, the
Executive had authority to speak as the sole organ of that
government. The assignment and the agreements in
connection therewith did not, as in the case of treaties, . . .
require the advice and consent of the Senate.” Id. (emphases
added). In other words, the Court not only emphasized the
President’s exclusive recognition power but also distinguished
it from the shared treaty power.
     In Guaranty Trust, the Court held that a United States
claim for payment of funds held in a bank account formerly
owned by Russia was barred by New York State’s statute of
limitations. 304 U.S. at 130, 143-44. In so doing, it relied on
the Executive branch’s recognition determination: which
“government is to be regarded here as representative of a
foreign sovereign state is a political rather than a judicial
question, and is to be determined by the political department
of the government. . . . We accept as conclusive here the
determination of our own State Department that the Russian
                              28
State was represented by the Provisional Government.” Id. at
137-38 (emphasis added).
    Finally, the Supreme Court in Pink, following Belmont,
held that New York State could not “deny enforcement of a
claim under the Litvinov Assignment because of an
overriding [state] policy.” Pink, 315 U.S. at 222. The Court
defined the recognition power broadly and placed it in the
hands of the President:
    The powers of the President in the conduct of
    foreign relations included the power, without consent
    of the Senate, to determine the public policy of the
    United States with respect to the Russian
    nationalization decrees. . . . That authority 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.
    Objections to the underlying policy as well as
    objections to recognition are to be addressed to the
    political department and not to the courts. . . .
Id. at 229 (citations omitted and emphases added).
     The Court also treated the recognition power as
belonging exclusively to the Executive in Baker v. Carr. It
explained that “recognition of [a] foreign government[] so
strongly defies judicial treatment that without executive
recognition a foreign state has been called a republic of whose
existence we know nothing.” 369 U.S. at 212 (quotation
marks and footnote omitted). The Court further explained that
“the judiciary ordinarily follows the executive as to which
nation has sovereignty over disputed territory” and that “it is
the executive that determines a person’s status as
representative of a foreign government.” Id. at 212-13
(emphases added).
                                  29
     Zivotofsky relies on United States v. Palmer, 16 U.S. 610
(1818), where the Court stated that “the courts of the union
must view [a] newly constituted government as it is viewed
by the legislative and executive departments of the
government of the United States.” See id. at 643. But this
observation simply means that the judiciary will not decide
the question of recognition. When the High Court has
discussed the recognition power with more specificity, as it
did in the above-cited cases, it has not merely stated that the
judiciary lacks authority to decide the issue but instead has
explained that the President has the exclusive authority. In
addition, Zivotofsky’s reliance on Cherokee Nation v.
Georgia, 30 U.S. 1 (1831), is misplaced as the case dealt with
the recognition of Indian tribes which, the Cherokee Nation
opinion itself explains, are materially distinct from foreign
nations. See id. at 18 (Marshall, C.J.); see also Miami Nation
of Indians of Ind., Inc. v. U.S. Dep’t of the Interior, 255 F.3d
342, 345 (7th Cir. 2001) (“Indian tribes are not foreign
[states] . . . .”).13

     13
        Zivotofsky also cites three other cases he contends indicate
the recognition power lies with both “political departments.” They
include: “Boumediene v. Bush, 553 U.S. 723, 753 (2008) (‘[T]he
Court has held that questions of sovereignty are for the political
branches to decide.’); Vermilya-Brown Co. v. Connell, 335 U.S.
377, 380 (1948) (‘[T]he determination of sovereignty over an area
is for the legislative and executive departments . . . .’); [and] Jones
v. United States, 137 U.S. 202, 214 (1890) (‘[A]ll courts of justice
are bound to take judicial notice of the territorial extent of the
jurisdiction exercised by the government whose laws they
administer, or of its recognition or denial of the sovereignty of a
foreign power, as appearing from the public acts of the legislature
and executive . . . .’).” Br. for Appellant 43 (emphases in brief). But
Boumediene, Vermilya-Brown and Jones do not involve the
recognition of a foreign power; rather, they relate to the authority of
                                  30
     Having reviewed the Constitution’s text and structure,
Supreme Court precedent and longstanding post-ratification
history, we conclude that the President exclusively holds the
power to determine whether to recognize a foreign
sovereign.14




the United States over a given territory. Because the Congress has
the enumerated constitutional power to “make all needful Rules and
Regulations respecting the Territory or other Property belonging to
the United States,” U.S. CONST., art. IV, § 3, cl. 2, the three cases
are distinguishable.
     14
        Zivotofsky points to early legal scholarship, including a
treatise written by William Rawle: “The legislature indeed
possesses a superior power, and may declare its dissent from the
executive recognition or refusal, but until that sense is declared, the
act of the executive is binding.” William Rawle, A View of the
Constitution of the United States of America 195-96 (Philip H.
Nicklin 2d ed. 1829). In 1833, Justice Joseph Story wrote that the
recognition question was an “abstract statement[ ] under the
constitution” that was “still open to discussion.” 2 Joseph Story,
Commentaries on the Constitution of the United States § 1566
(Little & Brown 2d ed. 1851). Moreover, while “[t]he constitution
has expressly invested the executive with power to receive
ambassadors, and other ministers[ i]t has not expressly invested
congress with the power, either to repudiate, or acknowledge
them.” Id. at 359 (emphasis added). Subsequently, while sitting as a
Circuit Justice, Justice Story wrote that “[i]t is very clear, that it
belongs exclusively to the executive department of our government
to recognize, from time to time, any new governments, which may
arise in the political revolutions of the world . . . .” Williams v.
Suffolk Ins. Co., 29 F. Cas. 1402, 1403 (C.C.D. Mass. 1838).
                              31
 C. Section 214(d) and the “Passport Power” vis-à-vis the
                     Recognition Power
    Having concluded that the President exclusively holds the
recognition power, we turn to the “passport power,” pursuant
to which section 214(d) is alleged to have been enacted. We
must decide whether the Congress validly exercised its
passport power in enacting section 214(d) or whether section
214(d) “impermissibly intrudes” on the President’s exclusive
recognition power. Zivotofsky V, 132 S. Ct. at 1428.
      Zivotofsky first contends that section 214(d) is a
permissible exercise of the Congress’s “passport power.” In
its remand to us, the Supreme Court directed that we examine,
inter alia, the parties’ evidence regarding “the nature of . . .
the passport . . . power[ ].” Id. at 1430. Neither party has
made clear the textual source of the passport power in the
Constitution, suggesting that it may come from the
Congress’s power regarding immigration and foreign
commerce. See, e.g., Oral Arg. Tr. 48-49 (Zivotofsky’s
counsel noting “there’s no specific power in the Constitution
that says passports” and referencing the Congress’s authority
“over immigration[ and] over international commerce”); Br.
for Appellee 45 (citing U.S. CONST., art. I, § 8, cls. 3, 4).
Nonetheless, it is clear that the Congress has exercised its
legislative power to address the subject of passports. It does
not, however, have exclusive control over all passport
matters. Rather, the Executive branch has long been involved
in exercising the passport power, especially if foreign policy
is implicated. See Haig v. Agee, 453 U.S. 280 (1981). Until
1856, no passport statute existed and so “the common
perception was that the issuance of a passport was committed
to the sole discretion of the Executive and that the Executive
would exercise this power in the interests of the national
security and foreign policy of the United States.” Id. at 293.
After the first passport law was enacted in 1856, “[t]he
                               32
President and the Secretary of State consistently construed the
1856 Act to preserve their authority to withhold passports on
national security and foreign policy grounds.” Id. at 295. And
once the Congress enacted the Passport Act of 1926, each
successive President interpreted the Act to give him the
authority to control the issuance of passports for national
security or foreign policy reasons: “Indeed, by an unbroken
line of Executive Orders, regulations, instructions to consular
officials, and notices to passport holders, the President and the
Department of State left no doubt that likelihood of damage to
national security or foreign policy of the United States was
the single most important criterion in passport decisions.” Id.
at 298 (footnotes omitted and emphasis added); see also 16
U.S. Op. Off. Legal Counsel 18, 23 (1992) (“Executive action
to control the issuance of passports in connection with foreign
affairs has never been seriously questioned.”).
     Zivotofsky relies on Supreme Court precedent that, he
contends, shows the Executive cannot regulate passports
unless the Congress has authorized him to do so. In both cases
cited, the Court held that the Executive branch acted properly
once the Congress had authorized it to so act. See Haig, 453
U.S. at 282, 289, 309 (upholding Executive authority to
revoke passport on national security and foreign policy
grounds after concluding revocation was authorized by
Congress); Zemel v. Rusk, 381 U.S. 1, 8 (1965) (upholding
State Department’s refusal to validate passport for travel to
Cuba because “the Passport Act of 1926 embodie[d] a grant
of authority to the Executive” (citation omitted)). But in
neither case did the Court state that the Congress’s power
over passports was exclusive. Indeed, in Haig, the Court made
clear that it did not decide that issue. Haig, 453 U.S. at 289
n.17 (“In light of our decision on this issue, we have no
occasion in this case to determine the scope of the very
delicate, plenary and exclusive power of the President as the
sole organ of the federal government in the field of
                                  33
international relations—a power which does not require as a
basis for its exercise an act of Congress . . . .” (quotation
marks omitted)). Likewise, in Zemel, the Court in effect
rejected the dissenters’ statements implying that the Congress
exclusively regulates passports. 381 U.S. at 21 (Black, J.,
dissenting) (“[R]egulation of passports . . . is a law-making—
not an executive, law-enforcing—function . . . .”); id. at 29
(Goldberg, J., dissenting) (Executive lacks “an inherent power
to prohibit or impede travel by restricting the issuance of
passports”). Instead, the Court emphasized that the
“Congress—in giving the Executive authority over matters of
foreign affairs—must of necessity paint with a brush broader
than that it customarily wields in domestic areas.” Id. at 17.15


     15
         Amicus Members of the United States Senate and the United
States House of Representatives rely on the holding in Kent v.
Dulles, 357 U.S. 116 (1958). In Kent, two citizens successfully
challenged the Secretary’s denial of their passports—on the ground
that they refused to state whether they were communists—arguing
that, inter alia, the denial violated their Fifth Amendment due
process right of travel. Id. at 117-20, 125. But Kent held, at most,
that absent congressional authorization, the State Department could
not deny a passport if the denial violated a constitutional right. See
id. at 129 (“If [constitutional] liberty is to be regulated, it must be
pursuant to the lawmaking functions of the Congress.” (quotation
marks omitted)). Here, the State Department has not denied
Zivotofsky a passport nor does Zivotofsky assert the violation of a
constitutional right. Moreover, the Court itself has not treated Kent
as if it held that the Executive’s regulation of passports is entirely
dependent on congressional authorization. See Haig, 453 U.S. at
289 n.17. For example, in Zemel, the Court distinguished Kent on
the basis that Kent had invalidated the State Department’s denial
“based on the character of the particular applicant.” 381 U.S. at 13.
In contrast, the denial that Zemel upheld was based on “foreign
policy considerations affecting all citizens”—namely, avoiding the
                                34
Thus, while the Congress has the power to enact passport
legislation, its passport power is not exclusive. And if the
Congress legislates pursuant to its non-exclusive passport
power in such a way to infringe on Executive authority, the
legislation presents a separation of powers problem. See, e.g.,
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130
S. Ct. 3138 (2010) (Sarbanes-Oxley Act’s dual for-cause
limitations on removal of members of financial oversight
board unconstitutional on separation of powers ground);
Bowsher v. Synar, 478 U.S. 714, 769 (1986) (“[E]ven the
results of the constitutional legislative process may be
unconstitutional if those results are in fact destructive of the
scheme of separation-of-powers.”).
     The question we must answer, then, is whether section
214(d)—which speaks only to passports—nonetheless
interferes with the President’s exclusive recognition power.
Zivotofsky contends that section 214(d) causes no such
interference because of its limited reach, that is, it simply
regulates one detail of one limited type of passport. But the
President’s recognition power “is not limited to a
determination of the government to be recognized”; it also
“includes the power to determine the policy which is to
govern the question of recognition.” Pink, 315 U.S. at 229.
Applying this rule, the Pink Court held that New York State
policy was superseded by the Litvinov Assignment when the
policy—which declined to give effect to claims under the
Litvinov Assignment—“collid[ed] with and subtract[ed] from
the [President’s recognition] policy” by “tend[ing] to restore
some of the precise impediments to friendly relations which
the President intended to remove” with his recognition policy.
Id. at 231.

danger that travel to Cuba by United States citizens “might involve
the Nation in dangerous international incidents.” Id. at 13, 15.
                              35
     With the recognition power overlay, section 214(d) is
not, as Zivotofsky asserts, legislation that simply—and
neutrally—regulates the form and content of a passport.
Instead, as the Secretary explains, it runs headlong into a
carefully calibrated and longstanding Executive branch policy
of neutrality toward Jerusalem. Since 1948, American
presidents have steadfastly declined to recognize any foreign
nation’s sovereignty over that city. The Executive branch has
made clear that the status of Jerusalem must be decided not
unilaterally by the United States but in the context of a
settlement involving all of the relevant parties. See supra pp.
1-2. The State Department FAM implements the Executive
branch policy of neutrality by designating how a Jerusalem-
born citizen’s passport notes his place of birth. For an
applicant like Zivotofsky, who was born in Jerusalem after
1948, the FAM is emphatic: denote the place of birth as
“Jerusalem.” 7 FAM 1383.5-6 (JA 115); see also 7 FAM
1383 Ex. 1383.1 pt. II (JA 127) (stating that “Israel” “[d]oes
not include Jerusalem” and that for applicants born in
“Jerusalem,” “[d]o not write Israel or Jordan”). In his
interrogatory responses, the Secretary explained the
significance of the FAM’s Jerusalem directive: “Any
unilateral action by the United States that would signal,
symbolically or concretely, that it recognizes that Jerusalem is
a city that is located within the sovereign territory of Israel
would critically compromise the ability of the United States to
work with Israelis, Palestinians and others in the region to
further the peace process.” Def.’s Resps. to Pl.’s Interrogs. at
8-9, Zivotofsky ex rel. Zivotofsky v. Sec’y of State, No. 03-cv-
1921 (D.D.C. June 5, 2006) (JA 58-59). Furthermore, “[t]he
Palestinians would view any United States change with
respect to Jerusalem as an endorsement of Israel’s claim to
Jerusalem and a rejection of their own.” Id. at 9 (JA 59)
(emphasis added). Thus, “[w]ithin the framework of this
highly sensitive, and potentially volatile, mix of political,
                               36
juridical, and religious considerations, 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. (emphasis added). “[R]eversal of United States
policy not to prejudge a central final status issue could
provoke uproar throughout the Arab and Muslim world and
seriously damage our relations with friendly Arab and Islamic
governments, adversely affecting relations on a range of
bilateral issues, including trade and treatment of Americans
abroad.” Id. at 11 (JA 61). We find the Secretary’s detailed
explanation of the conflict between section 214(d) and
Executive recognition policy compelling, especially given
“our customary policy to accord deference to the President in
matters of foreign affairs.” Ameziane v. Obama, 699 F.3d 488,
494 (D.C. Cir. 2012) (quotation marks omitted); see also
Jama v. Immigration & Customs Enforcement, 543 U.S. 335,
348 (2005) (noting “our customary policy of deference to the
President in matters of foreign affairs” that “may implicate
our relations with foreign powers . . . requir[ing]
consideration of changing political and economic
circumstances” (quotation marks omitted)); Rattigan v.
Holder, 689 F.3d 764, 769 (D.C. Cir. 2012) (finding “the
government’s arguments quite powerful, especially given the
deference owed the executive in cases implicating national
security” (quotation marks omitted)). By attempting to alter
the State Department’s treatment of passport applicants born
in Jerusalem, section 214(d) directly contradicts a carefully
considered exercise of the Executive branch’s recognition
power.
     Our reading of section 214(d) as an attempted legislative
articulation of foreign policy is consistent with the Congress’
characterization of the legislation. By its own terms, section
                                 37
214 was enacted to alter United States foreign policy toward
Jerusalem. The title of section 214 is “United States Policy
with Respect to Jerusalem as the Capital of Israel.” Pub. L.
No. 107-228 § 214, 116 Stat. at 1365 (emphasis added).
Section 214(a) explains that “[t]he Congress maintains its
commitment to relocating the United States Embassy in Israel
to Jerusalem and urges the President . . . to immediately begin
the process of relocating the United States Embassy in Israel
to Jerusalem.” Id. § 214(a), 116 Stat. at 1365-66. The House
Conference report accompanying the bill that became the
Foreign Relations Authorization Act explained that section
214 “contain[ed] four provisions related to the recognition of
Jerusalem as Israel’s capital.” H.R. Conf. Rep. 107-671 at 123
(Sept. 23, 2002). Various members of the Congress explained
that the purpose of section 214(d) was to affect United States
policy toward Jerusalem and Israel. See 148 CONG. REC.
H6,649, H6,649 (daily ed. Sept. 25, 2002) (statement of Rep.
Diaz-Balart) (“This legislation requires compliance with [the
Jerusalem Embassy Act16] that recognizes Jerusalem as the
capital of Israel . . . .”); id. at H6,653 (statement of Rep.
Hyde) (“[The bill] contains provisions to spur compliance
with [the Jerusalem Embassy Act] recognizing Jerusalem as
the capital of Israel.”); id. (statement of Rep. Lantos) (“Our
bill reaffirms United States policy that Jerusalem is the
undivided and eternal capital of the State of Israel.”); 148
CONG. REC. S9,401-02, S9,403 (daily ed. Sept. 26, 2002)
(statement of Sen. Helms) (“This bill . . . . recognize[s] the
right of Israel to name Jerusalem as its own capit[a]l . . . .”).
     Moreover, as the Secretary averred earlier in this
litigation, the 2002 enactment of section 214 “provoked
strong reaction throughout the Middle East, even though the

    16
         The Jerusalem Embassy Act is discussed supra at pp. 3-4.
                                 38
President in his signing statement said that the provision
would not be construed as mandatory and assured that ‘U.S.
policy regarding Jerusalem has not changed.’ ” Def.’s Resps.
to Pl.’s Interrogs. at 9-10, Zivotofsky ex rel. Zivotofsky v.
Sec’y of State, No. 03-cv-1921 (D.D.C. June 5, 2006) (JA 59-
60). For example, various Palestinian groups issued
statements asserting that section 214 “undermine[d] the role
of the U.S. as a sponsor of the peace process,” “undervalu[ed]
. . . Palestinian, Arab and Islamic rights in Jerusalem” and
“rais[ed] questions about the real position of the U.S.
Administration vis-à-vis Jerusalem.” Id. at 10 (JA 60)
(quotation marks omitted). As in Pink, the Secretary’s
enforcement of section 214(d) “would collide with and
subtract from the [President’s] policy” by “help[ing] keep
alive one source of friction” between the United States and
parties in conflict in the Middle East “which the policy of
recognition was designed to eliminate.” Pink, 315 U.S. at
231-32.17
     Zivotofsky argues that the Secretary has not suffered—
and will not suffer—adverse foreign policy consequences by
issuing him a passport that lists his place of birth as Israel. He
asserts that the Secretary has admitted that, from time to time,
the State Department has inadvertently issued passports with
“Israel” as the place of birth to citizens born in Jerusalem and
that there is no evidence that the issuance of the passports

    17
        Unlike in Pink, here the legislation that conflicts with the
President’s recognition power was enacted by the Congress, not a
state. But, as we today hold, the President exclusively exercises the
recognition power. The Congress, like a state, may not
impermissibly intrude on an exclusive Executive power. Contrary to
Zivotofsky’s assertion, then, the fact that the Congress, rather than
a state legislature, enacted section 214(d) does not distinguish this
case from Pink.
                                 39
resulted in harm to the United States’s foreign policy
interests. Similarly, Zivotofsky cites State Department records
that, before revision, referred to “Jerusalem, Israel.” Br. for
Appellant 14. Likewise, Amicus Zionist Organization of
America exhaustively catalogues official United States
websites that contained “Jerusalem, Israel” before recent
revisions. Zivotofsky further notes that “not a single
Palestinian or Arab interest group deemed it important enough
to submit an amicus curiae brief in the Supreme Court
contending that section 214(d) should not be enforced” nor
has any such group appeared in our court during this lengthy
litigation. Appellant’s Reply Br. 3. Zivotofsky also contends
that the Secretary’s fear of harm is exaggerated because
section 214(d)’s passport directive is not unlike its Taiwan
directive that allows an applicant born in Taiwan to specify as
his birthplace “Taiwan” rather than “China,” which directive
has been peacefully implemented. Br. for Appellant 54-56.18
     Nonetheless, we are not equipped to second-guess the
Executive regarding the foreign policy consequences of
section 214(d). See, e.g., Chi. & S. Air Lines v. Waterman S.S.
Corp., 333 U.S. 103, 111 (1948) (“[T]he very nature of
executive decisions as to foreign policy is political, not
judicial . . . . They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility and
have long been held to belong in the domain of political
power not subject to judicial intrusion or inquiry.”); see also
Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988) (“[F]oreign
policy [is] the province and responsibility of the Executive.”)

    18
        The State Department included “Taiwan” on passports only
after determining that doing so was consistent with United States
policy that Taiwan is a part of China; by contrast, section 214(d) is
inconsistent with the United States’s policy of neutrality regarding
Jerusalem.
                                 40
(quotation marks omitted); Haig, 453 U.S. at 292 (“Matters
intimately related to foreign policy and national security are
rarely proper subjects for judicial intervention.”). As the
Executive—the “sole organ of the nation in its external
relations,” Curtiss-Wright, 299 U.S. at 319—is the one branch
of the federal government before us19 and both the current
Executive branch as well as its predecessor believe that
section 214(d) would cause adverse foreign policy
consequences (and in fact presented evidence that it had
caused foreign policy consequences), that view is conclusive
on us. Cf. United States v. Nixon, 418 U.S. 683, 710 (1974)
(“[T]he courts have traditionally shown the utmost deference
to Presidential responsibilities . . . . involving foreign policy
considerations . . . .”). Moreover, Zivotofsky’s reliance on the
State Department’s earlier, incidental references to
“Jerusalem, Israel” or inclusion of “Israel” on the passports of
United States citizens born in Jerusalem is entirely misplaced.
The controversy does not arise because a website or passport
at one time included a reference connecting Jerusalem and
Israel. Rather, the unconstitutional intrusion results from
section 214(d)’s attempted alteration of United States policy
to require the State Department to take an official and
intentional action to include “Israel” on the passport of a
United States citizen born in Jerusalem. While the fact that
legislation merely touches on a policy relating to recognition
does not make it unconstitutional, section 214(d) does not do
so; instead the Congress plainly intended to force the State
Department to deviate from its decades-long position of
neutrality on what nation or government, if any, is sovereign
over Jerusalem. Accordingly, we conclude that section 214(d)

    19
        While an amicus brief has been submitted on behalf of six
senators and fifty-seven representatives, they of course do not speak
for the Congress qua the Congress.
                              41
impermissibly intrudes on the President’s recognition power
and is therefore unconstitutional.
           D. Zivotofsky’s Remaining Arguments
     Zivotofsky challenges the Secretary’s decision declining
to enforce section 214(d) on two additional grounds but we
find both grounds without merit.
     First, Zivotofsky contends that section 214(d) remedies
the State Department’s discriminatory policy against
supporters of Israel. He notes that an individual born in Tel
Aviv or Haifa after 1948 may list as his place of birth either
“Israel” or his local birthplace if he objects to including
“Israel.” See 7 FAM 1383.5-4 (JA 114). An individual born in
Jerusalem after 1948, as we have discussed, may not choose
between a country and a locality; rather, his place of birth
must be listed as “Jerusalem.” See 7 FAM 1383.5-6 (JA 115).
Zivotofsky laments that “[n]o matter where in Jerusalem an
American citizen may be born . . . he or she does not have the
option given to American citizens born in Tel Aviv or Haifa
to choose whether to record the country or city of birth.” Br.
for Appellant 57. We do not decide the merits of this
contention because Zivotofsky did not make it in district court
and it is therefore waived. See, e.g., Jicarilla Apache Nation
v. U.S. Dep’t of Interior, 613 F.3d 1112, 1117 (D.C. Cir.
2010).
     Second, Zivotofsky argues that President George W.
Bush’s signing statement—indicating that section 214 is, in
his view, unconstitutional—is invalid because he should have
instead vetoed the enactment to register his objection. The
signing statement is irrelevant. Even if the signing statement
were before us and we were somehow to find it wanting, that
conclusion would have no effect on the Secretary’s
enforcement of section 214(d) today.
                                  42
                               ****
     For the foregoing reasons, we affirm the judgment of the
district court dismissing the complaint on the alternative
ground that section 214(d) impermissibly infringes on the
President’s exercise of the recognition power reposing
exclusively in him under the Constitution and is therefore
unconstitutional.20
                                                         So ordered.




     20
       The district court dismissed Zivotofsky’s complaint on the
ground that it presented a nonjusticiable political question.
Zivotofsky III, 511 F. Supp. 2d at 99. While the district court did not
reach the merits, we need not remand because no factual
development is necessary to decide the case. See, e.g., Timbisha
Shoshone Tribe v. Salazar, 678 F.3d 935, 938 (D.C. Cir. 2012).
     TATEL, Circuit Judge, concurring: Although I concur fully
in the court’s opinion, I write separately to elucidate my
thinking about the important and novel separation-of-powers
question this case presents. The Secretary’s argument that
Section 214(d) is unconstitutional turns on two subsidiary
arguments: first, that the power to recognize foreign sovereigns
belongs to the President alone; and second, that Section 214(d)
interferes with the President’s exclusive exercise of that power.
But I think it best to begin with an issue that underlies and helps
frame these recognition power questions, namely, Congress’s
so-called passport power.

                                I.
     It is beyond dispute that Congress’s immigration, foreign
commerce, and naturalization powers authorize it to regulate
passports. See Court’s Op. at 31–34; Secretary’s Br. at 45–46
(acknowledging that “Congress . . . has the constitutional
authority to generally regulate the form and content of passports
in furtherance of its enumerated powers”). Zivotofsky would
have us stop there. He reasons that because Congress has the
power to regulate passports and because Section 214(d) is
passport legislation, the statute is constitutional. This argument,
however, overlooks the independent limitations the Constitution
imposes even on legislation within Congress’s enumerated
powers. That is, a statute that Congress would otherwise have
authority to enact may still run up against some independent
restriction on its power. For example, the Commerce Clause
authorizes Congress to regulate interstate communications, but
a communications statute may nevertheless run afoul of the
First Amendment. See, e.g., Reno v. ACLU, 521 U.S. 844
(1997) (holding that anti-indecency provisions of the
Communications Decency Act violated the First Amendment).

    The fact that Congress has affirmative authority to regulate
passports thus does not resolve the question of whether Section
214(d) comports with the separation of powers. It does,
                              2
however, help frame the quite narrow constitutional question
we must answer. Congress has authority to regulate passports;
we need only decide whether this particular exercise of that
authority, Section 214(d), infringes on the Executive’s
recognition power.

                              II.
     As I noted at the outset, in order to demonstrate that
Section 214(d) is unconstitutional the Secretary must begin by
establishing that the recognition power in fact inheres
exclusively in the President. This is because, as the court
explains, see Court’s Op. at 11–12, a President may “take[ ]
measures incompatible with the expressed . . . will of Congress”
only when he acts pursuant to an “exclusive” Executive power.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38
& n.4 (1952) (Jackson, J., concurring). If the Constitution
entrusts the recognition power exclusively to the President, as
the Secretary claims, there remains the even more difficult
question of whether Section 214(d) intrudes upon his exercise
of that power. In resolving both questions, we find ourselves in
relatively uncharted waters with few fixed stars by which to
navigate.

                             A.
     I have little to add to the court’s thorough discussion of
whether the Constitution endows the President with exclusive
power to recognize foreign sovereigns. As the court details,
there is scant constitutional text to guide us and little
contemporaneous evidence of the Framers’ intent. See Court’s
Op. at 14–17. Moreover, although the court thoroughly recounts
the historical precedents each side marshals in support of its
position, see id. at 17–22, the most striking thing about this
retelling is what is absent from it: a situation like this one,
where the President and Congress disagree about a recognition
                               3
question. To be sure, throughout our history Congress has often
acquiesced in a President’s unilateral recognition of a foreign
sovereign. See, e.g., id. at 17–18 (detailing President George
Washington’s recognition of France’s post-revolutionary
government). And on a few occasions, a President has
voluntarily coordinated with Congress regarding a recognition
decision. See, e.g., id. at 21–22 (pointing to President Abraham
Lincoln’s request that Congress endorse his recognition of
Liberia and Haiti). But neither party (nor any of the amici)
points to any time in our history when the President and
Congress have clashed over an issue of recognition.

     Given all that, it is unsurprising that the Supreme Court has
had no occasion to definitively resolve the political branches’
competing claims to recognition power. True, the Court has
consistently and clearly stated that courts have no authority to
second-guess recognition decisions. See, e.g., Williams v.
Suffolk Insurance Co., 38 U.S. 415, 420 (1839). And in so
doing, it has often referred to the recognition power as inhering
exclusively in the Executive. See, e.g., Banco Nacional de Cuba
v. Sabbatino, 376 U.S. 398, 410 (1964) (“Political recognition
is exclusively a function of the Executive.”). That said, the
Court has also occasionally suggested that Congress and the
President share that power. See, e.g. Jones v. United States, 137
U.S. 202, 212 (1890) (“Who is the sovereign . . . of a territory,
is not a judicial, but a political, question, the determination of
which by the legislative and executive departments . . .
conclusively binds the judges . . . .”). Significantly for our
purposes, the Court has made many more statements falling in
the former category than in the latter. But still and again, the
Court has never squarely resolved the precise question we face
today.

    To say that the question has yet to be conclusively
answered, however, is not to say—at least from the
                               4
perspective of this “inferior” court—that the answer is
unclear. All told, given the great weight of historical and legal
precedent and given that “carefully considered language of
the Supreme Court, even if technically dictum, generally must
be treated as authoritative,” United States v. Oakar, 111 F.3d
146, 153 (D.C. Cir. 1997) (internal quotation marks omitted),
we are compelled to conclude that “[p]olitical recognition is
exclusively a function of the Executive,” Sabbatino, 376 U.S.
at 410. Indeed, all three of our colleagues who considered this
question the last time this case was before us agreed. See
Zivotofsky v. Secretary of State, 571 F.3d 1227, 1231 (D.C.
Cir. 2009), vacated and remanded by Zivotofsky v. Clinton,
132 S. Ct. 1421 (2012); id. at 1240 (Edwards, J., concurring).
To hold otherwise, we would have to disregard not only their
considered views, but also the Supreme Court’s repeated
statements to the same effect, see e.g., 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 v. Carr, 369 U.S. 186, 212 (1962); United
States v. Pink, 315 U.S. 203, 228–30 (1942))), as well as
centuries of largely consistent historical practice, see Court’s
Op. at 17–22. Moreover, in light of the President’s “primary
responsibility for the conduct of our foreign affairs,” New
York Times Co. v. United States, 403 U.S. 713, 741 (1971),
locating the recognition power in the Executive branch
conforms to our broader constitutional design.
                              5
                               B.
     The critical question, then, is whether Section 214(d) in
fact infringes on the President’s exclusive authority to
recognize foreign sovereigns. The Secretary’s position is
straightforward: By preventing passport holders from
identifying a place of birth that conflicts with the President’s
recognition determinations, the Secretary’s place-of-birth policy
implicates recognition. This is all the more evident in the
context of Jerusalem. As Judge Edwards put it, “The
Secretary’s rules regarding the designation of Jerusalem on
passports . . . plainly implement the Executive’s determination
not to recognize Jerusalem as part of any sovereign regime.”
Zivotofsky, 571 F.3d at 1241–42 (Edwards, J., concurring).
Given that the Secretary’s place-of-birth policy implicates the
recognition power and given that Section 214(d) displaces that
policy, the Secretary reasons, the statute unconstitutionally
intrudes on the President’s recognition power.

     Zivotofsky sees things differently. His first and broadest
contention is that the President’s recognition power, even if
exclusive, does not include the power to determine whether
certain territory belongs to a particular foreign state. The
recognition power may give the President authority to decide
whether to recognize a foreign entity as a sovereign, he argues,
but it includes no authority to determine that sovereign state’s
territorial boundaries. This line of argument falls well short of
its mark. The power to recognize a sovereign state’s territorial
boundaries is a necessary corollary to the power to recognize a
sovereign in the first place. For instance, recognizing an
established sovereign’s former colony as a new, independent
sovereign seems a straightforward exercise of what even
Zivotofsky would concede to be the recognition power. But
such recognition necessarily entails a boundary determination—
the colony, once formally recognized as part of one sovereign’s
territory, is effectively recognized as belonging to another.
                                6
Indeed, precedent binding on this court confirms that the
recognition power includes authority to determine territorial
boundaries. See, e.g., Baker, 369 U.S. at 212 (“[T]he judiciary
ordinarily follows the executive as to which nation has
sovereignty over disputed territory . . . .”); Pink, 315 U.S. at
229–30 (holding that the recognition power is “not limited to a
determination of the government to be recognized,” but rather
includes the power to take actions without which “the power of
recognition might be thwarted”); Williams, 38 U.S. at 420
(“[W]hen the executive branch of the government . . . assume[s]
a fact in regard to the sovereignty of any island or country, it is
conclusive on the judicial department[.]”).

     Zivotofsky’s narrower argument, powerfully developed in
amicus briefs submitted by members of Congress and the Anti-
Defamation League, is much stronger. Letting Jerusalem-born
individuals choose to designate “Israel” as their place of birth,
he contends, neither effects a recognition of Israel’s sovereignty
over Jerusalem nor otherwise interferes with the President’s
recognition power. As he emphasizes, nothing in Section 214(d)
requires the Secretary to list “Israel” as the place of birth for all
Jerusalem-born U.S. citizens. Rather, it merely enables those
Jerusalem-born citizens who support Israel to choose to
designate their place of birth consistently with that view. Aside
from the Secretary’s say-so, Zivotofsky goes on to argue, there
is simply no reason to conclude that the statute’s limited
interference with the way the Secretary records a passport
holder’s place of birth implicates the recognition power. Nor is
there reason to believe that implementing Section 214(d) would
adversely affect foreign policy. Because affected passports
would list “Israel”—not “Jerusalem, Israel”—observers would
discern no U.S. policy identifying Jerusalem as part of Israel.

     What makes this case difficult is that Zivotofsky is partly
right. As the Secretary concedes, see Secretary’s Br. at 53 n.13,
                                7
a primary purpose of the place-of-birth field is to enable the
government to identify particular individuals—e.g., by
distinguishing one Jane Doe from another born the very same
day. And the fact that the Secretary permits individuals to
choose to list a city or area of birth instead of a country of birth
does tend to suggest that its place-of-birth policy is also about
personal identity.

     That the Secretary’s policy is about identification and
personal identity, however, does not mean that it does not also
implicate recognition. In fact, it clearly does. Over the years,
the Secretary has been incredibly consistent on this point: in no
circumstances—including circumstances beyond the Jerusalem
issue—can an individual opt for a place-of-birth designation
inconsistent with United States recognition policy. See 7 FAM
1383.5–1383.7. For example, because the United States never
recognized the Soviet Union’s annexation of Latvia, Lithuania,
and Estonia, the Secretary “did not authorize entry of ‘U.S.S.R.’
or the ‘Soviet Union’ as a place of birth” for people born in
these areas. 7 FAM 1340 Appx. D. Zivotofsky identifies no
deviation from this policy, nor am I aware of one. The Taiwan
directive to which Zivotofsky repeatedly points only
underscores the Secretary’s consistency. Because the United
States recognizes Taiwan as an area within China, permitting
individuals to list “Taiwan” as their place of birth comports
with the Secretary’s general policy. Moreover, one cannot
possibly read the Foreign Affairs Manual’s application of that
policy to Jerusalem as anything but an attempt to maintain
consistency between the place-of-birth field and the President’s
decision to recognize no sovereign’s claim to that city.

     That the Secretary accommodates identity preferences to
the extent they are consistent with recognition policy does little
to undermine his position that the place-of-birth field in fact
implicates recognition. The Secretary has consistently walked a
                                8
careful line, permitting individual choice where possible while
still ensuring consistency with foreign policy. Because the
Secretary’s policy is about both identification and recognition,
Congress could probably pass some laws about the place-of-
birth field that do not interfere with the recognition power. For
instance, Congress might be able to do little things, like require
that the place of birth be listed in a particular font. It might even
be able to do bigger things, like eliminate the place-of-birth
field all together. Although doing so would inhibit
identification of passport holders, it would not seem to interfere
with the President’s recognition power.

     But in enacting Section 214(d), Congress did intrude on the
recognition power. The statute seeks to abrogate the Secretary’s
longstanding practice of precluding place-of-birth designations
that are inconsistent with U.S. recognition policy. According to
the Secretary, Section 214(d) would also have consequences for
the President’s carefully guarded neutrality on the question of
Jerusalem. Although Zivotfosky challenges the President’s
judgment that adverse foreign policy consequences would flow
from implementing Section 214(d), he offers no reason why the
President’s exercise of his constitutional power to recognize
foreign sovereigns should hinge on a showing of adverse
consequences. Even more importantly, courts are not in the
business of second-guessing the President’s reasonable foreign
policy judgments, cf., e.g., Chicago & Southern Air Lines, Inc.
v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948), and this one
is perfectly reasonable. After all, “[a] passport is, in a sense, a
letter of introduction in which the issuing sovereign vouches for
the bearer.” Haig v. Agee, 453 U.S. 280, 292 (1981). And it is
certainly plausible, as the Secretary insists, that American-
issued passports listing “Israel” as the place of birth for
Jerusalem-born citizens could disrupt decades of considered
neutrality on the Jerusalem question.
                              9
     If this were all we had—only the Secretary’s reasonable
judgment that Section 214(d) infringes on the Executive’s
exclusive recognition power—it might well be enough. After
all, the Supreme Court has held that the recognition power
“includes the power to determine the policy which is to govern
the question of recognition.” Pink, 315 U.S. at 229. But there is
more. As it turns out, this is not a case in which we must choose
between the President’s characterization of a statute as
implicating recognition and Congress’s contrary view. Indeed,
Congress was quite candid about what it was doing when it
enacted Section 214(d). That subsection is part of a provision
titled “United States policy with respect to Jerusalem as the
capital of Israel.” Foreign Relations Authorization Act, Fiscal
Year 2003, Pub. L. No. 107-228 § 214, 116 Stat. 1365 (2002).
The other sections under that heading are not about passports,
they are about recognizing Jerusalem as part of—indeed, as the
capital of—Israel. See id. And the legislative history makes
doubly clear that recognition was Congress’s goal. See H.R.
Conf. Rep. No. 107-671, at 123 (Sept. 23, 2002) (explaining
that Section 214 “contains four provisions related to the
recognition of Jerusalem as Israel’s capital” (emphasis added));
see also Court’s Op. at 36–37 (highlighting similar statements
by various members of Congress).

     So in the end, this is a separation-of-powers dispute in
which both branches involved in the struggle actually agree.
Congress intended Section 214(d) to alter recognition policy
with respect to Jerusalem, and the President sees it the same
way. Our decision makes us the third and final branch to reach
this conclusion. And because the recognition power belongs
exclusively to the President, that means Section 214(d) is
unconstitutional.
                                10
                                 III.
     Although the foregoing analysis largely resolves this
case, there is one loose end I think merits mention:
Zivotofsky’s argument that the Secretary’s place-of-birth
policy discriminates against supporters of Israel. In its most
effective formulation, I take the point as follows: Under the
Secretary’s policy, supporters of Palestine born in Tel Aviv
can use their passports to signal their rejection of Israel’s
claim to sovereignty by choosing to list “Tel Aviv” instead of
“Israel” as their place of birth. By contrast, supporters of
Israel born in Jerusalem cannot use their passports to signal
their view that Jerusalem is part of Israel. Thus, the policy
discriminates against Israel supporters, and Section 214(d)
remedies that discrimination.

     To the extent this is an independent claim that the
Secretary’s policy is discriminatory, I agree it is waived. See
Court’s Op. at 41. To the extent the argument is that Section
214(d) is constitutional because it remedies unlawful
discrimination, such argument cannot overcome the
recognition power problem for the same reason the passport
power argument cannot: legislation Congress would otherwise
have authority to enact may still run afoul of an independent
constitutional restraint on congressional action.

     I nonetheless think it important to note that the policy is
not discriminatory. Indeed, unlike Section 214(d), which
permits Jerusalem-born Israel supporters to list “Israel” as
their place of birth but allows no parallel option for
Jerusalem-born Palestine supporters, the State Department’s
Foreign Affairs Manual establishes a facially neutral policy
that permits individuals to list their city or area of birth in lieu
of their country of birth. See 7 FAM 1383.5-2; 7 FAM
1383.6(a). The policy applies universally—not just in the
context of Jerusalem—and treats Israel and Palestine
                                 11
supporters identically. Jerusalem-born Americans, whether
supporters of Israel or supporters of Palestine, may not use
their passports to make a political statement. And that is
because permitting a Jerusalem-born individual to list “Israel”
or “Palestine” would contradict the President’s decision to
recognize neither entity’s sovereignty over Jerusalem.

     True, as Zivotofsky emphasizes with his Tel Aviv
example, individuals born within territory the United States
has recognized as belonging to Israel can choose either to list
“Israel” as their place of birth or instead to list a city or area
of birth. Israel supporters may list “Israel,” and Palestine
supporters may list something more specific. But although the
political nature of the latter choice may be clearer insomuch
as it marks a deviation from the default country-of-birth rule,
that is an unintended consequence of a neutral policy. Indeed,
were the United States to recognize the West Bank as the
sovereign state of Palestine, the same would be true of Israel
supporters born therein. That is, Palestine supporters could list
“Palestine,” and Israel supporters could make the more
obviously political choice to list their city or area of birth. It is
only because the United States has not recognized any
Palestinian territory that there currently exists no clear
analogy to Zivotofsky’s Tel Aviv scenario.
