Compelled Diplomacy in Zivotofsky v. Kerry
The basics of Zivotofsky v. Kerry are by now familiar. Congress enacted Section 214(d) of the Foreign Relations Authorization Act of 2003 to require that the Secretary of State record “Israel” as the country of birth on the passport of any requesting U.S. citizen who was born in Jerusalem, but two successive presidential administrations have refused to implement the statute. To the parties and lower courts, this has primarily been a dispute about the nature of the President’s power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II?
Consider the possibility that § 214(d) is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and recognition is beside the point.
