In 2002, Congress passed Section 214(d) of the Foreign Relations Authorization Act, which permitted American Citizens born in Jerusalem to identify on their passport that they were born in Israel. Since the passing of the statute, the State Department has refused to enforce the law, and lists only “Jerusalem” on its passports. In a 6-3 decision, the Supreme Court held that the President could disregard the Congressional Statute and upheld the State Department’s policy of only listing Jerusalem on the passports of American Citizens wishing to note that they were born in Israel. The issue before the court was whether the federal statute directing the Secretary of State to record the birthplace of an American citizen born in Jerusalem as “Israel,” if requested to do so, infringed on the President’s power to recognize foreign states. The Majority of the Court held that the statute was unconstitutional because it ran counter to the State Department’s long-standing policy of not recognizing any nation has having sovereignty over Jerusalem. As a result, the Statute was said to infringe on the Executive’s power to recognize foreign sovereigns. The Court’s decision is ground breaking and dangerous for multiple reasons. First, it construes the President’s recognition powers so broadly that it includes the place of birth listed on a passport. Second, it is an even greater triumph for the Executive as the ruling creates a judicial precedent that holds that the President can disregard a foreign affairs statute passed by Congress. And lastly, it sheds light onto the troublesome policy of the State Department to not just recognize Jerusalem as the capital of Israel, but to not even acknowledge that Jerusalem, even before its reunification in 1967 has always been part and parcel of Israel. As Abraham H. Foxman of the ADL notes, “U.S. has been unwilling for 65 years to grant its number-one ally the courtesy and respect to say, “This is your capital.” In an amicus brief filed by LBD and co-authored by leading scholars Alan Gura and Eugene Kontorovich in support of the plaintiff’s wishes to have “Israel” listed as his place of birth on his passport, we argued that one’s place of birth designation does not amount to formal recognition by the United States of the sovereign status over that location. In other words, the Court should have construed the recognition clause narrowly to not include where one lists their birthplace on their passport. Since the passport of a U.S. citizen born in Jerusalem would have merely read “Israel,” as it would if they were born in Haifa or Tel-Aviv, then it cannot be said that the President was making any sort of endorsement on the status of Jerusalem. The Majority opinion written by Justice Kennedy is surprising because as stated in the amicus brief, the recognition power that the Executive relies on is not at issue by the listing of a birthplace on a passport. Yet, the majority insists on construing the “recognition” power of the Executive broadly, even to encompass where one self-identifies as their place of birth on their passport. Zivotofsky signifies a major victory for the Executive Branch, as it construes the President’s recognition powers broadly. However, more troublesome is that the ruling gives the President the power to act in defiance of an expressed congressional mandate. As Justice Jackson described in his famous Youngstown concurrence, when the President acts in defiance of a congressional restriction, the President is acting with the least amount of presidential power available. In fact, in the realm of foreign relations, the court had never struck down a statute that was in direct opposition of the Executive. As noted by Chief Justice Roberts in his dissent, “The court takes the perilous step — for the first time in our history — of allowing the president to defy an act of Congress in the field of foreign affairs,” Roberts wrote. In Kennedy’s opinion, he notes that in matters of foreign relation, the entire nation must speak with “one voice.” Based on this language, Kennedy seems to suggest that in all aspects of foreign relations, even if not directly related to the Executive’s recognition power, the Executive has extra-constitutional powers even when its position directly conflicts with Congress. As a result, the decision is a triumphant power grab by the Executive because it disregards the role of Congress in shaping the foreign policy of the nation. This gets me to my last point: the power grab by the Executive leads to the conclusion that the only way to overturn the Executive’s policy of not recognizing the on-the ground reality that Israel acts as the sovereign over Jerusalem is to hold off for a new administration. Perhaps only a new administration, with it newfound extra-constitutional powers in foreign relations, can make the sensible policy decision to both recognize that Jerusalem is within Israel, and that it has always been the capital of the State of Israel.