The U.S. Supreme Court on Nov. 3 will hear argument in Zivotofsky v. Kerry, a case involving the birthplace designation on the passport of a child born in Jerusalem. The Department of Justice argues that the president has an “exclusive” power to recognize foreign nations, and regards as unconstitutional a statutory provision that permits a U.S. citizen to request the State Department to record Israel on a birth certificate or passport for the child.
But in opposing this provision, the department promotes misconceptions about the scope of presidential power in foreign affairs and relies on erroneous dicta in a 1936 Supreme Court decision, all at substantial cost to the American system of checks and balances.
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