- Doug Bandow, Cato Institute
On June 8, 2015, the Supreme Court decided Zivotofsky v. Kerry. This case concerns Section 214(d) of the Foreign Relations Authorization Act of 2003, which directs the Secretary of State, upon request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport. The question before the Court is whether the D.C. Circuit erred in holding Section 214(d) an unconstitutional infringement on the President’s power to recognize foreign sovereigns.
In an opinion delivered by Justice Kennedy, the Court affirmed the judgment of the D.C. Circuit by a vote of 6-3 as to passports and 5-4 as to consular reports. The power to recognize foreign governments, the Court held, rests solely with the President. Because Section 214(d) would require the President to contradict his prior recognition determination in an official document issued by the Secretary of State, the Court explained, Section 214(d) is unconstitutional.
Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. Chief Justice Roberts filed a dissenting opinion, which Justice Alito joined. Justice Scalia filed a dissenting opinion, which Chief Justice Roberts and Justice Alito joined.
To discuss the case, we have Mr. Steven Bradbury, who is a Partner at Dechert.
Miriam Ibrahim is a Sudanese woman who was arrested in Sudan and charged with adultery in August 2013 on the grounds that her marriage to a Christian man from South Sudan was void under Sudan's version of Islamic law, which says Muslim women cannot marry non-Muslims. The court added the charge of apostasy in February 2014, and she was sentenced to hang after refusing to renounce Christianity. Though her father was Muslim, he left her Ethiopian Orthodox mother to raise her from early childhood, and she was raised a Christian. Though she eventually was released in July 2014 and is now living in the United States, her arrest raises the question of whether and how the United States should respond to instances of the denial of religious freedom in other countries.
In December 2011 the last American soldier left Iraq. “We’re leaving behind a sovereign, stable, and self-reliant Iraq,” boasted President Obama. He was proved devastatingly wrong less than three years later as jihadists seized the Iraqi city of Mosul. The event cast another dark shadow over the future of global order—a shadow, which, Bret Stephens, Deputy Editorial Page Editor and Foreign Affairs Columnist for The Wall Street Journal, argues, we ignore at our peril.
America in Retreat: The New Isolationism and the Coming Global Disorder identifies a profound crisis on the global horizon. As Americans seek to withdraw from the world to tend to domestic problems, America’s adversaries spy opportunity. Vladimir Putin’s ambitions to restore the glory of the czarist empire go effectively unchecked, as do China’s attempts to expand its maritime claims in the South China Sea, as do Iran’s efforts to develop nuclear capabilities. Civil war in Syria displaces millions throughout the Middle East while turbocharging the forces of radical Islam. Long-time allies such as Japan, Saudi Arabia, and Israel, doubting the credibility of American security guarantees, are tempted to freelance their foreign policy, irrespective of U.S. interests.
Mr. Stephens argues for American reengagement abroad. He explains how military intervention in Iraq and Afghanistan was the right course of action, foolishly executed. He traces the intellectual continuity between anti-interventionist statesmen such as Henry Wallace and Robert Taft in the late 1940s and Barack Obama and Rand Paul today. And he makes an unapologetic case for Pax Americana, “a world in which English is the default language of business, diplomacy, tourism, and technology; in which markets are global, capital is mobile, and trade is increasingly free; in which values of openness and tolerance are, when not the norm, often the aspiration.”
In a chapter imagining the world of 2019, Mr. Stephens shows what could lie in store if Americans continue on their current course. Yet we are not doomed to this future. Mr. Stephens makes a passionate rejoinder to those who argue that America is in decline, a process that is often beyond the reach of political cures. Instead, we are in retreat—the result of faulty, but reversible, policy choices. By embracing its historic responsibility as the world’s policeman, America can safeguard not only greater peace in the world but also greater prosperity at home.
On November 3, 2014, the Supreme Court heard oral argument in Zivotofsky v. Kerry. This case concerns Section 214(d) of the Foreign Relations Authorization Act of 2003, which directs the Secretary of State, upon request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport. The question before the Court is whether this provision unconstitutionally infringes on the President’s power to recognize foreign sovereigns.
To discuss the case, we have Eugene Kontorovich, who is a Professor of Law at the Northwestern University School of Law.