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 agree and therefore hold that section 214(d) is unconstitutional.

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