Symposium: Zivotofsky was not about recognition by Congress or the President

Eugene Kontorovich is a professor of law at Northwestern University Law School He was the co-author, with Alan Gura, of an amicus brief in the case for the Brandeis Center for Human Rights Under the Law and Constitutional Law Professors.

The Court’s decision in Zivotofsky v. Kerry was quite close, especially given Justice Clarence Thomas’s odd concurrence in the result. The Court eschewed resting the opinion on a general foreign affairs power, instead focusing on a specific recognition power. This approach has the advantage of having at least some textual peg, however loose (the Ambassadors Clause). There is also much precedent for particular presidential discretion in this area. The opinion’s innovation consists of declaring the power to be exclusive.

But the opinion may actually be broader than it seems, because applying even an exclusive recognition power to the facts of the case would not obviously result in a win for the president. The case goes beyond recognition in two ways. First, it does not involve the traditional forms of recognition – countries and governments. Rather, it relates to the geographic scope of countries. Second, the challenged action – the passport law – was not an act of recognition, as the Court concedes.

The Court discusses various cases, all about recognizing new countries or new governments. Then it concludes: “the Executive Branch determines whether the United States will recognize foreign states and governments and their territorial bounds.” The last part, which I have emphasized, is not supported by the prior citations, which are about recognizing states and governments, but not about territorial bounds. The U.S. has already recognized Israel; there is no further recognition question.

In international practice, recognizing countries is quite different from making determinations about their borders. When a country is recognized, it is typically without any statement about its territorial scope. Indeed, new countries routinely come into the world with border disputes. The question is whether Congress gets to determine, when acting within its enumerated powers, which set of substantive law applies to the territory.

For example, when South Sudan became independent, it had a significant dispute with Sudan about a region between the two countries. Congress has trade provisions for both countries. Surely Congress can specify whether the disputed region will fall under the “Sudan” or “South Sudan” trade regime without making any sovereignty determination or disrupting the president’s recognition of either country.

Say Congress passes a set of tariffs, or immigration quotas, for India, and specifies that by this they mean Kashmir also. Can the president refuse to apply them to Kashmir? Or to turn it around, could the president apply Pakistani tariffs and immigration quotas to Kashmir when Congress says to apply Indian ones, on the grounds that it interferes with his power of recognition?
These are not far-fetched examples. Assume Congress wants to make a law relating to Israel – immigration quotas, or customs duties. That law would presumably not apply to Jerusalem, a fairly striking development. The president’s power to avoid laws through (non)recognition becomes even greater when, as with Israel, he can selectively recognize – that is, treat the territory as part of a country for some purposes, but not for others.

Indeed, in the short term, the decision may give support to legislative efforts to use language such as “Israel and the territories under its jurisdiction” in trade and other legislation relating to Israel. Some might fear this blurs the distinction between Israel and the West Bank, but such blurring is already inherent in the Jerusalem policy. Such legislation becomes necessary for Congress to accomplish and implement legislative trade policy.

Just as recognizing the geographic dimensions of country’s is not part of the executive’s historic recognition power, the opinion for the Court concedes that Congress’s passport law is itself not really an act of recognition. The designation of places in passports is simply not one of the ways countries recognize each other. This is especially the case when the designation is actually chosen by the bearer of the passport, and when the executive is free to explain – as he does with Taiwan – that the passport text does not reflect a sovereignty determination.

Rather, the Court concludes that Congress cannot make the president “contradict” his prior recognition. This is broader than an exclusive recognition power – it is recognition plus, or an emanation from a penumbra of recognition. In any case, it does not fit the facts well. A passport designation does not “contradict” a prior non-recognition. What would contradict it would be an act of recognition, or affording the area the formal legal status that comes with recognition.

Because recognition is a formality, it can only be contradicted through formality. Otherwise, there is simply no “contradiction.” And if that is not the case, then what the Court means by recognition is indeed somewhat broader than their opinion admits, as Jack Goldsmith has noted at Lawfare.

Finally, there are various interesting auxiliary implications of the opinion. As Alan Gura has pointed out, the Court’s decision in Zivotofsky spells trouble for the president’s immigration executive orders. The Court stressed the importance of respecting each branch’s foreign affairs powers. What is good for the executive’s newly recognized “recognition” power should likewise apply to Congress’s enumerated immigration power. The Chief Justice’s dissent, joined by Justice Alito, chiding the president for not faithfully executing the law, doesn’t help the president’s cause either.

The executive’s position on Jerusalem also raises an international law puzzler.

If Jerusalem is not in Israel, what is Israel doing in Jerusalem? Indeed, at the oral arguments Solicitor General Don Verrilli compared Israel’s position in western Jerusalem to that of Russia’s in Crimea and eastern Ukraine. Of course, Crimea is under belligerent occupation. This means that all construction and migration in western Jerusalem should be, by the definition of these terms often applied to eastern Jerusalem, illegal settlement activity.

The central point here is that the United States and most of the West does not think that the West Bank is part of any country. Nonetheless, they argue that the Geneva Convention’s definition of “occupation,” which in terms applies only to occupation sovereign territory of contracting parties, actually applies to any and all territory, regardless of its status. Since Jerusalem came (partly) under Israel’s control during a war (the War of Independence), it is hard to see why the Geneva Conventions would not, in the U.S. view, apply there.

Of course, the U.S. has never suggested such a thing, which may underscore the weakness of the underlying broad concept of occupation.