Malvina Halberstam on Zivotofsky v. Kerry
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June 23, 2015

The “decision is a first; never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” (ROBERTS, C.J., dissenting) (slip op., at 1).

The Opinion of the Court

The Court, in an opinion by Justice Kennedy, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined, held unconstitutional Section 214(d) of the Foreign Relations Act, a statutory provision requiring the Consul to enter Israel as the country of birth on passports of U.S. citizens born in Jerusalem, if so requested. It did so based on its conclusions (1) that the President has exclusive power of recognition and that (2) that power was infringed by the statute, as it was inconsistent with the President’s declared policy not to recognize Jerusalem as part of Israel (or any other State).

The Court phrased both the questions before it and its answer very narrowly. The questions: (1)”whether the President has exclusive power to grant formal recognition to a foreign sovereign” and (2)“whether Congress can command the President and his Secretary of State to issue a formal statement that contradicts his earlier recognition” (majority opinion) (slip op., at 2). The answer: “it is for the President alone to make the specific decision of what foreign power he will recognize. . . . Congress cannot require him to contradict his own statement regarding a determination of formal recognition.” (majority opinion) (slip op., at 18).

In the case of Taiwan the State Department complied with the law, but included a disclaimer; “’The United States does not officially recognize Taiwan as a ‘state’ or ‘country,’ although passport issuing officers may enter ‘Taiwan’ as a place of birth.’

The Court also empathically rejected the suggestion that the President has exclusive power to conduct foreign affairs. It said,

The Secretary . . . urges the Court to define the executive power over foreign relations in even broader terms. He contends that . . . the President has “exclusive authority to conduct diplomatic relations” along with ’the bulk of foreign affairs powers’ . . . . This Court declines to acknowledge that unbounded power. (majority opinion) (slip op., at 17).

Noting that “Curtiss Wright did not hold that the President is free from Congress’s lawmaking power in the field of international relations,” and that the language in Curtiss Wright cited in support of broad powers of the President in foreign affairs was not necessary for the decision in that case, the Court stated,

[W]hether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law . . . [I]t is essential that the Congressional role in Foreign Affairs be understood and respected. For it is Congress that makes laws, . . . The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. (majority opinion) (slip op., at 18). 

The concluding paragraph of the opinion states:

In holding §214(d) invalid the Court does not question the substantial power of Congress over foreign affair in general or passports in particular. This case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds. Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports. (majority opinion) (slip op., at 29).

Justice Thomas, Concurring In Part, Dissenting In Part

Although it was a 6 to 3 decision, only 5 Justices agreed that the President has exclusive recognition power and that §214(d) unconstitutionally infringed on that power. Justice Thomas, concurring in part and dissenting in part, took the position that part of the statute, that dealing with passports, is unconstitutional, because neither the enumerated powers of Congress nor the necessary and proper clause give Congress the power to regulate passports, but that the part of the statute requiring the Consul to enter Israel on the Consular Reports of birth abroad, is constitutional, because “those documents . . . fall within Congress’ power over naturalization.” (THOMAS, J., concurring in part and dissenting in part) (slip op., at 10).

He also disagreed with “the majority’s analysis because no act of recognition is implicated here.” (THOMAS, J., concurring in part and dissenting in part) (slip op., at 28). He said,

[t]he United States has recognized Israel as a foreign sovereign since May 14, 1948. . . . That the United States has subsequently declined to acknowledge Israel’s sovereignty over Jerusalem has not changed its recognition of Israel as a sovereign State. . . . [T]he United States has already afforded Israel the rights and responsibilities attendant to its status as a sovereign State. Taking a different position on the Jerusalem question will have no effect on that recognition. (THOMAS, J., concurring in part and dissenting in part) (slip op., at 30). 

Justice Scalia

Justice Scalia wrote a dissenting opinion in which Chief Justice Roberts and Justice Alito joined. Unlike Thomas, Scalia found ample support for the position that Congress has the power to regulate passports. He relied primarily on Art. I, § 8, cl.4, of the Constitution, giving Congress power to establish uniform Rules of Naturalization, but also cited other provisions of the Constitution and numerous laws adopted by Congress dealing with passports.

He agreed that the President has recognition power, but found it “a much harder question” whether the “power [is] exclusive,” (SCALIA, J., dissenting) (slip op., at 4), as there is historical evidence both ways. He did not need to decide that question because “section 214(d) has nothing to do with recognition.” (SCALIA, J., dissenting) (slip op., at 6).

Recognition. . . . is a formal legal act with effects under international law. . . . In order to extend recognition, a state must perform an act that unequivocally manifests that intention. That act can consist of an express conferral of recognition, or one of a handful of acts that by international custom imply recognition—chiefly, entering into a bilateral treaty, and sending or receiving an ambassador. . . .Section 214(d) does not require the Secretary to make a formal declaration about Israel’s sovereignty over Jerusalem. . . .[It] requires only those passports to list “Israel” for which the citizen (or his guardian) requests “Israel”; . . . It is utterly impossible for this deference to private requests to constitute an act that unequivocally manifests an intention to grant recognition. (SCALIA, J., dissenting) (slip op., at 5- 6) (citations omitted) (emphasis added).

He notes that the State Department had long insisted on recording the birth place of persons born in Taiwan as “China”, until Congress passed legislation giving them an option to have their birthplace recorded as Taiwan. In the case of Taiwan the State Department complied with the law, but included a disclaimer; “’The United States does not officially recognize Taiwan as a ‘state’ or ‘country,’ although passport issuing officers may enter ‘Taiwan’ as a place of birth.’ Nothing stops a similar disclaimer here”. (SCALIA, J., dissenting) (slip op., at 12).

Believing that the Court’s decision “does not rest on text or history or precedent” but on “‘functional considerations’ – principally the Court’s perception that the Nation ‘must speak with one voice’ about the status of Jerusalem,” he warns about the effect this will have on separation of powers. (SCALIA, J., dissenting) (slip op., at 14). He states:

Functionalism of the sort the Court practices today will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty. (SCALIA, J., dissenting) (slip op., at 14-15).

My Thoughts

When, at the conclusion of his oral argument in this case, the Solicitor General said, “it is quite important for this Court to understand that there is very serious risk that harm to our credibility as an honest broker on this very serious vexing issue could be called into serious question,” Justice Alito responded, “our decision isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.” One has to wonder whether the Justices comprising the majority agree with Justice Alito on this point or did in fact take the Solicitor General’s statement to heart in deciding the case.

Although recognition is not mentioned in the Constitution and has very weak Constitutional roots (the duty to “receive ambassadors,” which both Hamilton and Madison stated would be of “no significance”), and there is language in prior Supreme Court decisions and historical evidence to support both a conclusion that recognition is not an exclusive executive power and that it is an exclusive executive power, the Court’s decision that recognition is an exclusive executive power is tenable. The majority’s conclusions that a statute based on Congress’ enumerated powers is unconstitutional if it infringes on the President’s recognition power, and that requiring a passport and record of birth to state Israel, if a U.S. citizen born in Jerusalem so requests, infringes on that power, are not.

Congress may and does adopt legislation that is inconsistent with action taken by the President in the conduct of foreign affairs. For example, Congress may adopt legislation that contravenes a treaty ratified by the President, as noted by Justice Scalia, and nobody would suggest that the President is not required to implement such legislation. As noted earlier, the Court was emphatic in its rejection of the broad position urged by the Solicitor General that Congressional action that interferes with the President’s conduct of foreign affairs is unconstitutional. Its decision that Congress may not do so is limited to legislation that requires the President to “issue a formal statement that contradicts his earlier recognition” — the situation involved here. To quote Justice Scalia, the Court “announce[d] a rule that is blatantly gerrymandered to the facts of this case.” (SCALIA, J., dissenting) (slip op., at 11).

Recognition is a formal act under international law that can only be accomplished in specific ways. Listing Israel as the place of birth on the passport of a U.S. citizen born in Jerusalem who so requests (not even Jerusalem, Israel, as erroneously stated by some media), is not one of the ways to confer recognition under international law.

Moreover, concern that a statement on a passport or record of birth could be misconstrued as recognition of Israeli sovereignty over Jerusalem could have been addressed by a disclaimer, as the State Department did in the case of Taiwan. Justice Kennedy raised that possibility twice during oral argument in this case, yet does not address it in his opinion.

The Court’s decision that §214(d) is unconstitutional is legally flawed and disappointing. On the positive side, the decision does clarify two important matters. It establishes that the President has exclusive recognition power. Most importantly, it makes clear more than seventy-five years after Curtiss Wright was decided, that the President does not have “unbounded” foreign affairs power, as some have argued based on the broad language in that case.

Malvina Halberstam is a Professor of Law at the Benjamin N. Cardozo School of Law and served as Counselor on International Law in the U.S. Department of State, Office of the Legal Adviser.

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