Symposium: President wins in Zivotofsky: Will there be another battle?

Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School. He filed an amicus brief in the case in support of the Zivotofsky family. He is also the author of “The Sounds of Silence: The Irrelevance of Congressional Inaction in Separation of Powers Litigation,” 81 Geo. Wash. L. Rev. 1211 (2013), which discusses some of the issues raised by this case.

 Yesterday in Zivotofsky v. Kerry, the Supreme Court awarded the president a major victory in a separation-of-powers dispute with Congress. Justice Anthony Kennedy’s opinion, in which Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined, concluded that (a) the president has the exclusive power to recognize foreign governments, (b) the power of recognition extends beyond the formal designation to include statements mandated by Congress that would be inconsistent with the official recognition, and (c) Congress has no power, by statute, to interfere with the president’s recognition power, including in this case to require the State Department to honor the request of the parents of a child born in Jerusalem that his passport indicate that he was born in Israel (instead of Jerusalem), when the official policy of the president (and all his predecessors) was that the status of Jerusalem was unsettled, and that it is not officially part of Israel. Justice Clarence Thomas agreed with the result, but not the majority’s rationale. Chief Justice John Roberts filed a dissenting opinion that was joined by Justice Samuel Alito, and they both joined a longer dissent by Justice Antonin Scalia. There is so much to discuss in these opinions that this post can only be a summary or first cut.

On the recognition issue, everyone agreed that, in the absence of a contrary action by Congress, the president has the power to recognize foreign governments, including changes in them. That is not because there is a word in the Constitution to that effect or indeed is there anything that gives the president any express power over any aspect of foreign affairs. But it surely makes as much sense today as it did in 1789 that the president should not have to wait for Congress to act on recognition in an ever-changing world. And that same approach ordinarily permits the president to decide the boundaries of the country whose government is being recognized (for example, whether Jerusalem is within Israel) and what to say on the passport about the place of birth for a child who is born in Israel to U.S.-citizen parents. The question that the Court had to answer was what should happen when Congress enacts a law that contradicts the president on the passport’s contents.

In ruling for the president, the Court found that his power of recognition is exclusive, basing that conclusion largely on his power to “receive Ambassadors and other public Ministers” in Article II, section 3. That clause surely supports some recognition power in the president – after all, a nation would not receive an ambassador from another country without recognizing him or her as the representative of a legitimate government of that country. But that power, which can be seen as simply designating the person within the U.S. government who will be the point of contact, says nothing on its face about how to resolve a conflict between a decision by the president to recognize the government of a foreign country, in the face of opposition by Congress. The majority also cited the express power in the Constitution for the president to negotiate treaties and the fact that the president may send an ambassador only when Congress has approved that appointment. It noted the express involvement of the Senate in both those actions and the absence of a specified role for it or the House in recognition as evidence of presidential exclusivity. That conveniently overlooks the fact that there is no mention of recognition in the Constitution even for the president, which amply explains why there is no prescribed role for Congress along with it. The majority also noted the need for the United States to speak with one voice, but that does not answer whose voice or what to do when there is a difference between Congress and the president, or why that change in positions is any worse if made by a new president (or a sitting president changing his mind), rather than Congress.

The Court next looked to its prior decisions and frankly acknowledged that they do not answer this question since they spoke only to the allocation of foreign affairs powers between the federal and state governments and the role of the judiciary in contrast to that of Congress and the president.   The Court also cited various points in history in which various presidents, to the surprise of no one, exercised the power to recognize other countries and suggested that Congress had no role, except to support the president.   To the majority’s credit, it did not over-rely on what the president did and what Congress did not do when various presidents took unilateral actions in this area, for reasons I discuss in my essay. In the end, with no text or prior opinions to guide it, the majority seemed to decide that the power of recognition should be exclusive because that was the most sensible arrangement to it, and nothing in the Constitution is expressly to the contrary.

Before turning to the remainder of the inquiry, there is one aspect of the Court’s opinion that will warm the hearts of those who teach constitutional law and litigate against the Department of Justice in the area of foreign affairs: the impact of United States v. Curtiss-Wright Export Corp. on these questions. If you are in that group, you will want to read pages 16-18 of the majority opinion, as well as page 6 of the Chief Justice’s dissent (noting that the Solicitor General cited the case no fewer than ten times in his brief), to get the full flavor of the relegation of Curtiss-Wright to the special place reserved for excessive and now rejected dicta. Nonetheless, the president won the battle over the extent of his powers despite Curtiss-Wright, not because of it.

It is here that the opinion gets slippery. Justice Kennedy recognized that, in the world of foreign affairs, Congress can enact valid laws and that “the Executive is not free from ordinary controls or checks of Congress because foreign affairs are at issue,” adding that it is “not for the President alone to determine the whole content of the nation’s foreign policy.” But in the next paragraph, he reverted to the presidential exclusivity position, concluding that “Congress cannot require him to contradict his own statement regarding a determi­nation of formal recognition.”

Finally, the majority turned to the question of whether requiring Jerusalem impinged on the president’s recognition power, observing, quite correctly, that the statute at issue “directly contradicts” the long-held executive branch policy on Jerusalem. From that, Justice Kennedy asserted that “[i]f the power over recognition is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s state­ments,” relying on both common sense and necessity. According to the majority, “if Congress could alter the President’s statements on mat­ters of recognition or force him to contradict them, Con­gress in effect would exercise the recognition power.” It went on to emphasize that the subject here is “quite narrow” and deals only with formal recognition, which would not preclude Congress from expressing its disagreement with the president in many ways, including to “enact an embargo, decline to confirm an ambassador, or even declare war” because “none of these acts would alter the President’s recognition decision.”

This juxtaposition between what Congress can and cannot do is in addition to the majority’s observation on page 13 that “the President could not build an American Embassy abroad without congressional appropriation of the necessary funds.” Is the majority suggesting either that, despite the recognition power, Congress can enact important laws, like declaring war, but not narrow ones, like dictating the contents of passports, or that Congress might have won this battle if it de-funded the State Department’s passport authority unless it changed its Jerusalem policy on place of birth? If the extra-textual power of recognition is so exclusive and vital that it trumps the law at issue here, why would it not prevail in those other cases?

Three other points about the majority opinion are worth noting. First, it expressed concern about the adverse reaction to the passage of the passport law by the Palestine Liberation Organization, which it saw as a change in US policy toward Jerusalem. Since when does, what the Chief Justice referred to as “an international heckler’s veto” have any relevance to separation of powers litigation?

Second, the opinion describes the law as one in which “Congress wanted to express its displeasure with the President’s policy” but that is hardly a basis for a finding of unconstitutionality. Indeed, that exact disagreement is built into the Constitution, expressly allowing the president to veto a law that Congress has enacted, and then for Congress to override his veto – in both cases because of policy disagreements. President Bush had that option here, but chose to sign the bill into law. While that should not work as a forfeit of the president’s separation-of-powers defense, it is also a complete answer to the Court’s charge that disagreement is an illegitimate basis for Congress to act. And to describe passing a law that assigns its implementation to the State Department as an “improper act” of congressional aggrandizement is to rob those terms of all meaning. Perhaps what the majority is saying (indirectly) is something that always troubled me, even as I supported Congress on this issue: what legitimate purpose was Congress serving by this passport law and did it trump the president’s foreign policy concerns? That is an interesting question of policy, but is not one that anyone but an advocate of a wholly free-ranging Supreme Court activism would think the Court is expected to decide in a separation-of-powers litigation.

Third, as all the opinions point out, Congress and the president have managed to go 225 years without a direct confrontation like this one. Why this one? Surely, the infringement on the power of the president, if any, was slight. In fact, in what were similar, if not identical, circumstances regarding a law on passports for persons born in Taiwan, the State Department reached an accommodation, by allowing the passport designation, while making a public statement that the law did not alter the government’s position on recognition of China and Taiwan. Even if that did not undermine the State Department’s legal position, it raises the question of why a similar accommodation was not made here. Perhaps the answer lies in the fact that the refusal to honor the law, and to raise a constitutional objection at signing and in court was made during the administration of President George W. Bush when his Vice President Richard Cheney took almost every opportunity he could to assert presidential prerogatives. Perhaps someday when the papers of that administration are made public, we may have a more definitive answer.

Justice Clarence Thomas’s dissent disagreed with everyone else’s rationales and declined to address the central issue of the recognition power and its exclusivity. His main argument was that Congress had no power to enact a law dealing with the place-of-birth aspect of passports. Relying on his uniquely narrow view of the enumerated powers assigned to Congress, including under the Necessary and Proper Clause, he concluded that this passport requirement had nothing to do with foreign commerce or naturalization and thus exceeded Congress’s Article I powers. Thus, because Congress had no power to pass the passport provision, it creates no valid conflict with the president’s power over passport contents. Justice Antonin Scalia’s dissent took on that position in its final section, describing it as “parsimonious” and one that “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.”

Justice Thomas’s other disagreement was with respect to a portion of the law that the Zivotofskys had formally challenged in the papers, but on which they never pressed an objection. The statute at issue also requires the designation of Israel to be used in the consular report of birth, a document that is used to establish the nationality of a person born outside the United States to U.S.-citizen parents. Thomas chided the majority (and implicitly the Zivotofsky family) for not pressing this claim which he found to be meritorious. He reasoned both that the Naturalization Clause supported this provision and that naturalization was a matter for Congress rather than the president, which ended any separation-of-powers dispute. What Thomas overlooked is that the Zivotofsky family wanted the visible passport changed, and did care about the internal consular report which could not substitute for a passport. Moreover, it is doubtful that they would have standing to object to those contents because no one had challenged their son’s U.S. citizenship, which is the only use to which that record is put.

The Chief Justice issued a brief dissent, rejecting both the majority’s conclusion that the power of recognition is exclusive for the president and then concluding that, in any event, this law “does not implicate recognition.” His conclusion was that this was an unnecessary rejection of a federal statute. As he saw the case,

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.

Justice Scalia’s dissent is a full-blown rejection of the pro-president position of the majority. He began by citing to the English tradition of entrusting the King with the foreign affairs, but, as he put it, “[t]he People of the United States had other ideas when they organized our Government.”   In his view, 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.” He then explained why he had doubts about the exclusivity of the president’s power over recognition, but concluded that he had “no need to confront these matters today—nor does the Court—because §214(d) plainly does not concern recognition.” After discussing why this law did not involve recognition, he observed: “Finding recognition in this provision is rather like finding admission to the Union in a provision that treats American Samoa as a State for purposes of a federal highway safety program.” His final criticism of the majority was that while its “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.”

Two further points. From time to time, pundits try to predict the outcome of separation-of-powers cases by looking at where various Justices spent time before coming to the Court. That approach would surely have failed here. The three dissenting Justices supported Congress in this dispute, yet all three served in high positions in the Justice Department and never worked in Congress. On the president’s side, Justice Kagan alone served in a high-ranking administration position. Justice Breyer noted that he would have found this case to involve a political question, but on the merits he sided with the majority, which meant that he would come to the same result either way. But that outcome could hardly have been discerned from his prior government service: he spent two years near the start of his career in the Antitrust Division of the Department of Justice and was also a member of the Watergate Special Prosecution team, but then he worked for two years for Senator Edward Kennedy. Neither Justice Kennedy nor Justice Ginsburg or Sotomayor had any prior allegiance to the executive branch, other than to the presidents who appointed them – which is, of course, true for all nine of them. Not what you would expect if you thought that their prior backgrounds would affect their decision in this case.

Finally, the only safe prediction about Zivotofsky is that the writings about it will consume many trees, both with regard to how it reached its conclusions and what might happen next. On the latter question, this may be a question that occurs once every two centuries, but it may not have such benign results. Although Curtiss-Wright has been largely neutered, the world of implied executive powers in foreign affairs and perhaps elsewhere is very much with us, in both their concurrent and exclusive varieties. President Obama may well decide to fight Congress on matters such as an arms agreement with Iran and his authority to negotiate trade agreements, even without exercising his constitutional veto. Or he might announce that he has recognized the Castro-led Cuban government, with no worry about an effort of Congress to override him. On the other side, Congress might decide to up the ante by following Justice Kennedy and using the power of the purse, especially as part of a bill that the president must sign to keep the government from shutting down.

The Court has drawn seemingly new battle lines; it remains to be seen what the potential combatants make of them.