Yerushalayim Shel Zahav (via Wikimedia)
At the Supreme Court, as in Hollywood, sequels are often more bloated and less universally satisfying than the original. To understand last Monday's decision in
Zivotofsky v. Kerry, I'm going to ask you to do something which may be impossible: forget about what the case is actually about. Suppose this case isn't about Jerusalem, isn't about Israel, isn't about President Obama's defense of a stance President George W. Bush asserted in a signing statement.
Let's instead think of it more in the abstract: when the president, through the secretary of state, sets forth detailed rules on how one's place of birth should be listed in a passport, in order to accommodate diplomatic niceties, is this terrain solely within the Executive Branch's command, or does Congress have the power to overrule them? Because the question actually before the court is not whether Israel has sovereignty over Jerusalem, but rather which branch(es) of our government can weigh in on that question.
I reviewed the facts of this case when it first came before the court in 2012. On Monday, the court reached the merits of whether Jerusalem-born Menachem Binyamin Zivotofsky could list "Jerusalem, Israel" on his passport as his place of birth (which Congress would allow) or required the passport to just say "Jerusalem" (the Bush/Obama position) and ... in a 6-3** decision authored by Justice Kennedy, decided the president should prevail.
Essentially, the case tells two competing histories of the fight between the presidency and Congress on who gets to recognize foreign nations. Justice Kennedy, the four liberals, and Justice Thomas (** because he writes separately, but dissents on a smaller point) determine that "the power to recognize or decline to recognize a foreign state and its territorial bounds resides in the president alone"; Justice Scalia, Justice Alito, and the Chief Justice argue this power is shared between the branches, concluding that the Founders "did not entrust either the president or Congress with sole power to adopt uncontradictable policies about any subject—foreign-sovereignty disputes included. They instead gave each political department its own powers, and with that the freedom to contradict the other’s policies."
Some highlights, past the orange gnocchi.
This is one of those cases which reads much more like history than legal argument—everyone's surveying 200+ years of American diplomatic history to pick out the most favorable examples. The best I can do is give you a flavor of the arguments, so ...
The Majority, authored by Justice Kennedy:
In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. It is not for the President alone to determine the whole content of the Nation’s foreign policy.
That said, judicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations. Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear. Congress cannot require him to contradict his own statement regarding a determination of formal recognition.
Zivotofsky’s contrary arguments are unconvincing. The decisions he relies upon are largely inapposite. This Court’s cases do not hold that the recognition power is shared. Jones v. United States, 137 U. S. 202 (1890) , and Boumediene v. Bush, 553 U. S. 723 (2008), each addressed the status of territories controlled or acquired by the United States—not whether a province ought to be recognized as part of a foreign country. And no one disputes that Congress has a role in determining the status of United States territories. See U. S. Const., Art. IV, §3, cl. 2 (Congress may “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”). Other cases describing a shared power address the recognition of Indian tribes—which is, similarly, a distinct issue from the recognition of foreign countries. See Cherokee Nation v. Georgia, 5 Pet. 1 (1831).
To be sure, the Court has mentioned both of the political branches in discussing international recognition, but it has done so primarily in affirming that the Judiciary is not responsible for recognizing foreign nations. This is consistent with the fact that Congress, in the ordinary course, does support the President’s recognition policy, for instance by confirming an ambassador to the recognized foreign government. Those cases do not cast doubt on the view that the Executive Branch determines whether the United States will recognize foreign states and governments and their territorial bounds.
And, for instance (cites deleted for clarity, as usual):
The first debate over the recognition power arose in 1793, after France had been torn by revolution. Once the Revolutionary Government was established, Secretary of State Jefferson and President Washington, without consulting Congress, authorized the American Ambassador to resume relations with the new regime. Soon thereafter, the new French Government proposed to send an ambassador, Citizen Genet, to the United States. Members of the President’s Cabinet agreed that receiving Genet would be a binding and public act of recognition. They decided, however, both that Genet should be received and that consultation with Congress was not necessary. Congress expressed no disagreement with this position, and Genet’s reception marked the Nation’s first act of recognition—one made by the President alone.
The recognition power again became relevant when yet another revolution took place—this time, in South America, as several colonies rose against Spain. In 1818, Speaker of the House Henry Clay announced he “intended moving the recognition of Buenos Ayres and probably of Chile.” Clay thus sought to appropriate money “ ‘[f ]or one year’s salary’ ” for “ ‘a Minister’ ” to present-day Argentina. President Monroe, however, did not share that view. Although Clay gave “one of the most remarkable speeches of his career,” his proposed bill was defeated. That action has been attributed, in part, to the fact that Congress agreed the recognition power rested solely with the President. Goebel 124; see, e.g., 32 Annals of Cong. 1570 (statement of Rep. Alexander Smyth) (“[T]he acknowledgment of the independence of a new Power is an exercise of Executive authority; consequently, for Congress to direct the Executive how he shall exercise this power, is an act of usurpation”). Four years later, after the President had decided to recognize the South American republics, Congress did pass a resolution, on his request, appropriating funds for “such missions to the independent nations on the American continent, as the President of the United States may deem proper.”
And, accordingly:
Although the statement required by §214(d) would not itself constitute a formal act of recognition, it is a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State. As a result, it is unconstitutional. This is all the more clear in light of the longstanding treatment of a passport’s place-of-birth section as an official executive statement implicating recognition. The Secretary’s position on this point has been consistent: He will not place information in the place-of-birth section of a passport that contradicts the President’s recognition policy. If a citizen objects to the country listed as sovereign over his place of birth, then the Secretary will accommodate him by listing the city or town of birth rather than the country. But the Secretary will not list a sovereign that contradicts the President’s recognition policy in a passport. Thus, the Secretary will not list “Israel” in a passport as the country containing Jerusalem.
The flaw in §214(d) is further underscored by the undoubted fact that that the purpose of the statute was to infringe on the recognition power—a power the Court now holds is the sole prerogative of the President. The statute is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” The House Conference Report proclaimed that §214 “contains four provisions related to the recognition of Jerusalem as Israel’s capital.” H. R. Conf. Rep. No. 107–671, p. 123 (2002). And, indeed, observers interpreted §214 as altering United States policy regarding Jerusalem—which led to protests across the region. From the face of §214, from the legislative history, and from its reception, it is clear that Congress wanted to express its displeasure with the President’s policy by, among other things, commanding the Executive to contradict his own, earlier stated position on Jerusalem. This Congress may not do.
On the other hand, writes Justice Scalia (for himself, the Chief, and Justice Alito):
Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs. The royal prerogative included the “sole power of sending ambassadors to foreign states, and receiving them at home,” the sole authority to “make treaties, leagues, and alliances with foreign states and princes,” “the sole prerogative of making war and peace,” and the “sole power of raising and regulating fleets and armies.” The People of the United States had other ideas when they organized our Government. They considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.
The People therefore adopted a Constitution that divides responsibility for the Nation’s foreign concerns between the legislative and executive departments. The Constitution gave the President the “executive Power,” authority to send and responsibility to receive ambassadors, power to make treaties, and command of the Army and Navy—though they qualified some of these powers by requiring consent of the Senate. Art. II, §§1–3. At the same time, they gave Congress powers over war, foreign commerce, naturalization, and more. Art. I, §8. “Fully eleven of the powers that Article I, §8 grants Congress deal in some way with foreign affairs.” L. Tribe, American Constitutional Law, §5–18, p. 965.
This case arises out of a dispute between the Executive and Legislative Branches about whether the United States should treat Jerusalem as a part of Israel. The Constitution contemplates that the political branches will make policy about the territorial claims of foreign nations the same way they make policy about other international matters: The President will exercise his powers on the basis of his views, Congress its powers on the basis of its views. That is just what has happened here.
And, they argue, this doesn't encumber the Recognition power in the end:
Section 214(d) does not require the Secretary to make a formal declaration about Israel’s sovereignty over Jerusalem. And nobody suggests that international custom infers acceptance of sovereignty from the birthplace designation on a passport or birth report, as it does from bilateral treaties or exchanges of ambassadors. Recognition would preclude the United States (as a matter of international law) from later contesting Israeli sovereignty over Jerusalem. But making a notation in a passport or birth report does not encumber the Republic with any international obligations. It leaves the Nation free (so far as international law is concerned) to change its mind in the future. That would be true even if the statute required all passports to list “Israel.” But in fact it requires only those passports to list “Israel” for which the citizen (or his guardian) requests “Israel”; all the rest, under the Secretary’s policy, list “Jerusalem.” It is utterly impossible for this deference to private requests to constitute an act that unequivocally manifests an intention to grant recognition.
Section 214(d) performs a more prosaic function than extending recognition. Just as foreign countries care about what our Government has to say about their borders, so too American citizens often care about what our Government has to say about their identities. The State Department does not grant or deny recognition in order to accommodate these individuals, but it does make exceptions to its rules about how it records birthplaces. Although normal protocol requires specifying the bearer’s country of birth in his passport, the State Department will, if the bearer protests, specify the city of birth instead—so that an Irish nationalist may have his birthplace recorded as “Belfast” rather than “United Kingdom.” And although normal protocol requires specifying the country with present sovereignty over the bearer’s place of birth, a special exception allows a bearer born before 1948 in what was then Palestine to have his birthplace listed as “Palestine”. Section 214(d) requires the State Department to make a further accommodation. Even though the Department normally refuses to specify a country that lacks recognized sovereignty over the bearer’s birthplace, it must suspend that policy upon the request of an American citizen born in Jerusalem. Granting a request to specify “Israel” rather than “Jerusalem” does not recognize Israel’s sovereignty over Jerusalem, just as granting a request to specify “Belfast” rather than “United Kingdom” does not derecognize the United Kingdom’s sovereignty over Northern Ireland.
And in conclusion:
It turns the Constitution upside-down to suggest that in areas of shared authority, it is the executive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President’s powers, Art. I, §8, cl. 18, but the President must “take Care” that Congress’s legislation “be faithfully executed,” Art. II, §3. And Acts of Congress made in pursuance of the Constitution are the “supreme Law of the Land”; acts of the President (apart from treaties) are not. Art. VI, cl. 2. That is why Chief Justice Marshall was right to think that a law prohibiting the seizure of foreign ships trumped a military order requiring it. It is why Justice Jackson was right to think that a President who “takes measures incompatible with the expressed or implied will of Congress” may “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (concurring opinion) (emphasis added)....
International disputes about statehood and territory are neither rare nor obscure. Leading foreign debates during the 19th century concerned how the United States should respond to revolutions in Latin America, Texas, Mexico, Hawaii, Cuba. During the 20th century, attitudes toward Communist governments in Russia and China became conspicuous subjects of agitation. Disagreements about Taiwan, Kashmir, and Crimea remain prominent today. A President empowered to decide all questions relating to these matters, immune from laws embodying congressional disagreement with his position, would have un-controlled mastery of a vast share of the Nation’s foreign affairs.
That is not the chief magistrate under which the American People agreed to live when they adopted the national charter. They believed that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 301 (Madison). For this reason, they did not entrust either the President or Congress with sole power to adopt uncontradictable policies about any subject—foreign-sovereignty disputes included. They instead gave each political department its own powers, and with that the freedom to contradict the other’s policies. Under the Constitution they approved, Congress may require Zivotofsky’s passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President’s preference for neutrality about the status of Jerusalem.
The Chief and Justice Alito add a separate dissent to add these thoughts:
As for history, the majority admits that it too points in both directions. Some Presidents have claimed an exclusive recognition power, but others have expressed uncertainty about whether such preclusive authority exists. Those in the skeptical camp include Andrew Jackson and Abraham Lincoln, leaders not generally known for their cramped conceptions of Presidential power. Congress has also asserted its authority over recognition determinations at numerous points in history. The majority therefore falls short of demonstrating that “Congress has accepted” the President’s exclusive recognition power. In any event, we have held that congressional acquiescence is only “pertinent” when the President acts in the absence of express congressional authorization, not when he asserts power to disregard a statute, as the Executive does here.
In sum, although the President has authority over recognition, I am not convinced that the Constitution provides the “conclusive and preclusive” power required to justify defiance of an express legislative mandate. Youngstown, 343 U. S., at 638 (Jackson, J., concurring).
But even if the President does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition. ...
Resolving the status of Jerusalem may be vexing, but resolving this case is not. Whatever recognition power the President may have, exclusive or otherwise, is not implicated by §214(d). It has not been necessary over the past 225 years to definitively resolve a dispute between Congress and the President over the recognition power. Perhaps we could have waited another 225 years. But instead the majority strains to reach the question based on the mere possibility that observers overseas might misperceive the significance of the birthplace designation at issue in this case. And in the process, the Court takes the perilous step—for the first time in our history—of allowing the President to defy an Act of Congress in the field of foreign affairs.
And Justice Thomas largely breaks from his conservative colleagues, instead siding with the majority, but on his own, lengthy terms:
After the ratification of the Constitution, President Washington immediately took responsibility for issuing passports. Although “ ‘[p]ast practice does not, by itself, create power,’ ” “a governmental practice [that] has been open, widespread, and unchallenged since the early days of the Republic . . . should guide our interpretation of an ambiguous constitutional provision.” NLRB v. Noel Canning, 573 U. S. _, _ (2014) (Scalia, J., concurring in judgment) (slip op., at 5). The history of the President’s passport regulation in this country is one such practice. From the ratification until the end of the Civil War, the President issued passports without any authorization from Congress. As the Department of State later remarked, “In the absence of any law upon the subject, the issuing of passports to Americans going abroad naturally fell to the Department of State, as one of its manifestly proper functions.” To that end, the Secretary’s authority was “entirely discretionary.” Congress acted in support of that authority by criminalizing the “violat[ion] [of] any safe-conduct or passport duly obtained and issued under the authority of the United States.” Congress only purported to authorize the President to issue such passports in 1856 and, even under that statute, it provided that passports should be issued “under such rules as the President shall designate and prescribe for and on behalf of the United States.” The President has continued to designate and prescribe the rules for passports ever since.
And there's a lot of Thomas-on-Scalia sniping (and vice versa), including:
Justice Scalia’s dissent does at least answer how, in his view, the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution. He believes that congressional power should trump in any such conflict. I see nothing in the Constitution that clearly mandates that solution to a difficult separation-of-powers question, and I need not opine on it. I find no power under which Congress could lawfully have enacted the passport directive of §214(d), apart from its power under the Necessary and Proper Clause to carry into effect the President’s powers. And I have offered textual and historical support for my conclusion that the Clause does not include the power to direct the President’s exercise of his passport power.
Finally, Justice Scalia faults me for failing to consider a number of potential sources of congressional power for §214(d) not argued by any of the parties, ranging from the Fourteenth Amendment; to the Migration or Importation Clause, Art. I, §9, cl. 1; to the Territories Clause, Art. IV, §3, cl. 2. Post, at 15. But no one—not even Justice Scalia—has seriously contended that those provisions would afford a basis for the passport provision of §214(d).
In the end, Justice Scalia characterizes my interpretation of the executive power, the naturalization power, and the Necessary and Proper Clause as producing “a presidency more reminiscent of George III than George Washington.” But he offers no competing interpretation of either the Article II Vesting Clause or the Necessary and Proper Clause. And his decision about the Constitution’s resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America.
So, who's right? Imagine a future President Scott Walker and a Democratic Congress battling over these issues, and you may have your answer.
SCOTUSblog has the case documents, reactions, and more.