No Country for Young Men

We’re back!

If you recall, Zivotofsky v. Kerry focused on whether Jerusalem can or cannot be marked as a city in Israel (as opposed to a city without a country) on Americans’ passports, but the true debate focused on whether the legislative branch or the executive branch has authority over passports or, perhaps, recognition of foreign nations and their parts.

In 2002, Congress passed a law that, among other things, gave parents of children born in Jerusalem the authority to mark Jerusalem as a part of Israel (so it would read “Israel” rather than “Jerusalem”) on the children’s passports. President Bush signed the law but issued a signing statement declaring this specific provision unconstitutional as it interfered with the president’s authority to conduct foreign policy. In fact, the State Department, in the Executive Branch, included in its manual the instruction to mark the passport of any child born in Jerusalem as just “Jerusalem,” with no country after it because of the sensitive dispute over who controls the city. The question the Court seeks to ask in this case is who has control over passports. They could be a form of “commerce with foreign nations,” regulation of which is a clear Congressional responsibility. Control over passports could also be part of establishing a “uniform rule of naturalization,” again a Congressional responsibility. Or, as the administration argues, it could be a part of the president’s authority to conduct foreign affairs on the nation’s behalf, and to “recognize” (recognition power) foreign nations, their governments, and parts of those countries. Either way, this case is close.

Not to mention, though this shouldn’t matter in the actual case, the ramifications of ruling one way over the other could seriously impact tensions in the Middle East. To declare Jerusalem as a part of Israel would perhaps signal to Middle Eastern nations that U.S. policy has shifted from its sturdy position that Jerusalem is controlled by no nation and its status shall be determined upon the completion of peace negotiations between Israel and Palestine.

On June 8, the Court gave its decision. It was a 6-3 vote in favor of the executive branch. Justice Anthony Kennedy, giving the majority decision, said the case asked two questions: does the President have exclusive power of recognition (of foreign nations)? If he does in fact have that power, is it legal for the Congress to command the President to contradict an earlier recognition? Justice Kennedy argues that the nation must speak with one voice on recognition – that one voice is the President’s. Kennedy noted that recognition of nations is perhaps not as strict of a procedure as commonly thought; even unofficial statements of recognition can count, including markings on a passport. In fact, as Kennedy notes, Congress’s intention was to recognize Jerusalem as a part of Israel. In fact, the section of the law question contained “four provisions related to the recognition of Jerusalem as Israel’s capital.” Kennedy also argued that, while Congress may have authority over passports, that authority stops when it infringes on the president’s recognition power. Kennedy’s ruling is more narrow than the administration would like; he rejects their claim that the president has the exclusive power to conduct all foreign relations. Kennedy noted that Congress a number of foreign affairs powers, including declaring war, enacting an embargo, or, in the Senate’s case, refuse to agree to a treaty. Despite that last part, this is a clear win for the executive branch, declaring that section 214(d) of the Foreign Relations Authorization Act, the provision of the law in question, definitely infringes on the president’s recognition power.

The Temple Mount, Jerusalem

The liberal wing of the Court, Justices Ginsburg, Breyer, Kagan, and Sotomayor, joined Kennedy’s decision, with Breyer filing a concurring opinion, noting that he believed the case asked a political question that the Court should not address. Justice Clarence Thomas filed a separate opinion, in part concurring and in part dissenting. Justice Thomas agreed in striking down the 2002 law in regards to passports, but he disagreed with Kennedy’s rationale. He disagreed that the case involved recognition, but he thought there was a constitutional basis for presidential authority over passports as a wing of foreign policy, and that Congress’s law could apply to consular reports of births abroad.

Two dissenting opinions were filed, one by Justice Roberts, joined by Justice Alito, and one by Justice Scalia, joined by Justices Roberts and Alito.

Justice Roberts noted in his dissent that accepting a president’s defiance of a Congressional statute in foreign affairs is without precedent in the Court. Roberts argues that the passport change in question hardly involve recognition; rather,  it is a simple request that would have no effect on our foreign affairs. Roberts categorized the majority as focusing on the results of the case before the constitutional question. In other words, he believes the justices in the majority made their decision to avoid a Middle East conflict, by not taking sides with Israel, rather than looking at the text of the Constitution.

In his dissenting opinion, joined by Justices Roberts and Alito, Justice Antonin Scalia agrees that the passport changes in question would not be a formal act of recognition. While the history of recognition powers is ambiguous at best, writes Scalia, this case is hardly one of recognition. This is a view shared by a number of legal scholars, the most prolific of which is likely Eugene Kontorovich, who wrote a series of articles on the subject for the Washington Post. Scalia also writes that reserving all diplomacy powers in the executive is a principle used by the monarchies from which we sought to separate in the 18th century. Scalia argues that the contradictory nature of governing is inevitable: Congress and the president have various responsibilities, many of which may overlap, but the contradictions are not a problem. Scalia’s dissent also stressed the importance of avoiding “pragmatism” as a basis for decisions: while allowing the unitary president to speak on foreign affairs would accomplish foreign policy goals more effectively, the decision hardly supports the Constitution’s separation of powers. Monarchs could make foreign policy decisions more easily than most styles of government.

Menachem Zivotofsky, whose passport is in question, with his father and lawyer

Ultimately, this case should be seen as an expansion of presidential power over foreign policy, specifically solidifying the president’s (now, definitely, exclusive) recognition power. The case clarified what is included in that recognition (recognizing the boundaries of countries) as well as what constitutes recognition (it can be more informal than prior cases had established). Consequently, this case can also be seen as a loss for Congress, mostly in terms of their foreign relations authority, but even the majority decision sought to salvage much of Congress’s authority in that department.

Commentary on the case appears all over the internet. Michael Dorf, the Robert S. Stevens Professor of Law at Cornell Law School, notes that Kennedy’s repudiation of Curtiss-Wright, a case from the 1930s that (in)famously referred to the executive branch as the “sole organ” of foreign relations policy, means that in the future, Zivotofsky will be seen as minimizing presidential power. As is argued in an article in The Economist, Kennedy’s characterization of Congress’s role in foreign policy means that Congress has a role in shaping the nature of relationships that the President formally creates. Relevant today is the example that while President Obama may normalize relations with Cuba, it is up to Congress to set up (or not set up, which looks increasingly likely) much of the specifics of the relationship.

In the New York Sun, Rick Richman notes that the decision by the Court, that staying out of the conflict at all costs and even a word in a passport could upset the Israel-Palestine dispute over Jerusalem will limit the U.S. from supporting a Palestinian state in an upcoming U.N. session. At the Louis D. Brandeis Center, Jacky Beda writes that the decision is problematic because it (a) construes the president’s recognition power too broadly since it includes formal and informal means of recognizing a state, (b) creates a judicial precedent for a President ignoring a foreign affairs statute passed by Congress, and (c) reveals the anti-Zionist policy of the United States to not recognize Jerusalem as the capital of Israel (for the record, I do not agree that the executive’s position anti-Zionist).

Calvin Massey, Distinguished Professor of Law at the University of New Hampshire School of Law, notes at The Faculty Lounge that Kennedy’s decision was flawed and Justice Thomas decided correctly. He writes that, first, this was a political question, not to be resolved by the Court: there was no pressing reason to decide the scope of recognition power as the country had “gotten along just fine” without its resolution. Second, he writes, in foreign affairs powers, there are certain Presidential responsibilities and certain Congressional responsibilities. What falls between the two can be considered “residual powers” and ought to be left to the President (this was Justice Thomas’s view). Third, Massey argues, the idea that recognition is exclusively a Presidential responsibility is not incorrect, but it is bad to define the scope of that recognition to include deciding the boundaries of a recognized nation. Massey criticizes the dissent by noting that the authors failed to make the case that Congress had the authority to pass the act in question in the first place.

Professor Edward T. Swaine, in the George Washington Law Review Docket, scoffed at the notion of a unitary executive; he noted that some non-executive actor, like state governments or members of Congress, could always be counted on to make some notion of recognition. While the majority could declare these non-executive acts as “falling short” of recognition, the same argument could be made for the case at hand.

Kenneth Jost, an adjunct professor of law at the Georgetown University Law Center, notes that Justices Scalia’s and Thomas’s opposing decisions are at odds with the supposed “objective” nature of originalist constitutional interpretation. Jost ultimately criticizes Scalia and says that, while Scalia may have been unable to find an “exclusive” recognition power for the President, he sure didn’t find any recognition power whatsoever for Congress. That being said, Scalia did negate the idea that this matter involved recognition at all. Jost writes that where Thomas and Scalia differ is that Thomas sees the 2002 law as “improper” (in other words, not “necessary and proper,” a popular basis for Congressional authority), since it instructs the President on his own powers, whereas Scalia sees the issue as just a disagreement between the branches that needs not be settled by a Court interpretation of separation of powers.


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