We are accustomed to treat rulings by the U.S. Supreme Court as authoritative guides in deciding questions of constitutional law. But what happens if a ruling depends on a plain misconception of what someone said? Why continue to rely on judicial error? This abstract question takes contemporary form with a decision by the U.S. Court of Appeals for the D.C. Circuit in May in Zivotofsky v. Clinton. The Supreme Court has yet to decide whether it will hear the case, but if it does, the justices would have an opportunity to acknowledge a judicial mistake.
The appeals court in Zivotofsky ruled that a 2002 congressional statute “impermissibly intrudes” on the president’s power to recognize foreign governments. The statute required the secretary of state to record “Israel” as the place of birth on the passport of a U.S. citizen born in Jerusalem if the parent or guardian so requested. The court acknowledged that neither the text of the Constitution nor the Framers’ intent “provides much help” in deciding the scope of the president’s recognition power. In weighing the president’s implied recognition power against Congress’ implied authority to set passport policy, the court decided in favor of executive power.
