Part of the appellate question, before the United States Supreme Court in Zivotofsky v. Kerry, is whether the notation, in a United States passport, of “Israel” as the place of birth of a citizen who was born in Jerusalem, “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

The misleading assumption of the appellate question is that United States passports have something to do with foreign affairs – in the appeal, recognition. However, United States passports are entirely unrelated to foreign affairs.


On March 4, 1789, the Department of Foreign Affairs, of the Confederation government, was carried over by the Constitution government. Shortly afterward, on July 27, 1789, the Department of Foreign Affairs was established by United States law.

On September 15, 1789, the name of the Department of Foreign Affairs was changed, by law, to the Department of State. The reason was that duties of the State Department were not limited to foreign affairs. The State Department had domestic duties, too.

Among the domestic duties, assigned to the State Department at various times in the early decades, were issuance of maritime documents for sailing ships; publication, distribution, and preservation of United States statutes; patents; census returns; the mint; copyrights; and immigration.

The State Department acquired passport-issuance authority on August 18, 1856.

These days, the domestic duties of the State Department include issuance of passports; issuance of Consular Reports of Birth; possession and use of the Great Seal of the United States; and receipt of a writing which expresses a refusal to accept, or a resignation from, the office of President or the office of vice president.

Passports are within the category of domestic duties, because issuance or revocation of a passport, by the State Department, has no legal relationship with the foreign-affairs work of the State Department.

A passport is obtainable by a national of the United States (for almost everybody, that means “citizen”) who meets the statutory and regulatory standards for passport issuance. Those are proof by the passport applicant of his identity, and proof by the passport applicant of his United States nationality. Also, the passport applicant must not be personally ineligible to hold a passport.

Grounds of personal ineligibility include being in default on a repatriation loan obtained from the State Department, being in arrears on child-support payments, having been convicted of a drug-related crime, and being a minor under the age of sixteen whose parents disapprove of issuance of a passport to him.

If a national of the United States meets the statutory and regulatory standards, a passport must be issued to him. The State Department may not consult a foreign government about passport issuance.

Revocation of a passport, by the State Department, is limited to a ground specified in a statute or a regulation. For example, a passport holder who was convicted of a drug-related crime must have his passport revoked. A foreign government may not be consulted by the State Department about passport revocation.

The Hail Mary play of the State Department is to claim an association between passports and foreign affairs, based on a handful of specific passport revocations. One such, according to the State Department, was the revocation of the passport of Philip Agee in 1979.

In fact, that revocation was unrelated to foreign affairs. It was not done in response to a request by a foreign government.

While Agee was in West Germany, he campaigned traitorously against the CIA. He revealed the identities of several CIA officers, and put their lives in danger. For the domestic purpose of making it difficult for Agee to continue his anti-CIA campaign, the State Department revoked his passport.

Discontinuity of specific passport revocations weakens the claimed association between passports and foreign affairs. The passport of Jane Fonda (a.k.a. Hanoi Jane) was not revoked, after she went to Hanoi in 1972, and spoke and acted traitorously in support of North Vietnam.

Place of birth is not noted on the data page of a passport to facilitate official action against the Agees and the Fondas among passport holders, or to lay the groundwork for recognition by the President of a foreign government, or to pave the way for acceptance by the United States of the sovereignty of a foreign government over certain territory.

Notation of place of birth has the same purpose as does notation of the other personal identifiers (name, date of birth, sex, and nationality) on the data page. Those data enable an immigration officer, at an immigration point of entry, to assess whether a would-be entrant into the country is the rightful bearer of the presented passport.

Krueger is the author of Krueger on United States Passport Law (2nd ed. 2005).