Symposium: Zivotofsky and pragmatic foreign relations law

Curtis A. Bradley is the William Van Alstyne Professor of Law and Professor of Public Policy Studies at Duke University.

Zivotofsky v. Kerry is a significant decision, both in the specific area of foreign relations law, and in the more general domain of separation of powers law. As Justice Jackson made clear in his influential concurrence in the Youngstown steel seizure case, the president’s power is at its “lowest ebb” when he takes actions that are at odds with the express or implied will of Congress. Zivotofsky confirms, however, that the president is sometimes still entitled to prevail in that situation. The decision is also important, of course, for U.S. foreign policy, in that it ensures that the executive branch can continue to maintain its posture of neutrality with respect to the dispute between Israel and the Palestinians over the status of Jerusalem.

The focus of my comments concerns the methodology of the decision rather than its outcome. As I will discuss, the majority opinion in Zivotofsky is noteworthy for its pragmatic, rather than formalistic, approach to the distribution of constitutional authority over foreign affairs. That is, rather than relying on abstract analytical categories or limiting itself to specific constitutional text, the opinion takes into account a variety of methodological considerations, including considerations relating to the practical consequences of adopting one interpretation over another. As a result, it tends to provide a counterpoint to the claim (made, for example, in a thoughtful article by Harlan Cohen) that the Supreme Court has shifted to a formalistic approach in its treatment of foreign relations law. Although somewhat less clear, the decision also tends to undercut the claim (made most notably by Ganesh Sitaraman and Ingrid Wuerth in a recent article in the Harvard Law Review) that the Supreme Court is “normalizing” foreign relations law – that is, treating it the same way that it treats ordinary issues of domestic law.

The Court begins its analysis in Zivotofsky by immediately moving beyond strict textualism, inferring a presidential recognition power from what it perceives to be implications of the text and structure of the Constitution. More significantly, in concluding that this recognition power is exclusive and thus cannot be exercised by Congress, the Court proceeds to take account of what it refers to as “functional considerations,” including in particular the proposition that “the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.” The Court explains that “[i]f the President is to be effective in negotiations over a formal recognition determination, it must be evident to his counterparts abroad that he speaks for the Nation on that precise question.”

As it did in last Term’s recess appointments decision, NLRB v. Noel Canning, the Court also emphasizes the relevance of historical practice in discerning the Constitution’s distribution of authority. The Court notes that, “[h]aving examined the Constitution’s text and this Court’s precedent, it is appropriate to turn to accepted understandings and practice.” While candidly acknowledging that “history is not all on one side” of the recognition power question, the Court finds that “the weight of historical evidence” supports the view that “the formal determination of recognition is a power to be exercised only by the President.” As Trevor Morrison and I have written, historical practice is not self-defining and requires interpretation, and it should not be surprising that the way the Court in Zivotofsky interprets the practice (which was ambiguous on the issue of an exclusive, as opposed to concurrent, recognition power) seems to have been influenced by its sense of the consequences of adopting one interpretation over another.

Having found an exclusive recognition power, the Court also reasons pragmatically about what that power entails. Technically, the passport statute at issue did not recognize Israeli sovereignty over Jerusalem, but the Court credits the executive branch’s view that enforcement of the statute would be perceived as contradicting that branch’s longstanding position of neutrality relating to the status of Jerusalem. The Court also reasons 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.” The Court describes this conclusion as “a matter of both common sense and necessity.” This is an exemplar of pragmatic reasoning.

The decision in Zivotofsky is, in short, a victory for pragmatism over formalism in U.S. foreign relations law. It is only one decision, of course, and I make no claim that it is part of any particular methodological trend. Indeed, I am skeptical of broad generalizations about such matters, as I have recently noted.

It is striking, though, how the Court’s approach in this decision differs from its approach in the first Supreme Court decision in the Zivotofsky case, in which the Court reasoned formalistically in concluding that the political question doctrine did not bar judicial review. In my view, the two Zivotofsky decisions, while contrary in approach, are potentially connected. If functional concerns are stripped out of the political question doctrine in the service of formalism, they may well reemerge at the merits stage, something that Neil Siegel and I suggested in a recent article on Noel Canning in the Supreme Court Review. This possibility has important implications for those who call for more robust judicial review in the area of foreign affairs as a means of addressing what they consider to be excessive executive authority. After all, if the Court in Zivotofsky had abstained from deciding the issue, Congress would be able to continue asserting that it had the authority to enact the statute at issue, but it has now lost that ability, and the executive branch has now obtained a precedent that it can potentially invoke in other disputes with Congress.

The implications of the latest Zivotofsky decision for the somewhat distinct claim that the Supreme Court is “normalizing” foreign relations law are more difficult to evaluate, although the decision probably undercuts that claim as well. As I recently explained in commenting on the Sitaraman/Wuerth article, it is not entirely clear what normalization is supposed to mean in practice, or why it might be occurring (to the extent that it differs from a shift towards formalism). One particular problem in evaluating the normalization claim is that it is not clear when issues of domestic law and foreign relations law are comparable. Without knowing that, it is difficult to know whether foreign relations law is being treated exceptionally in any given situation.

Putting those uncertainties aside, there are statements in Zivotofsky that might seem to support some sort of normalization, in that the Court emphasizes that separation of powers constraints apply even in foreign affairs. The Court notes, for example, that “[t]he Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” It also cites James Madison’s discussion in Federalist 51 of how the constitutional structure was designed so that “ambition must be made to counteract ambition,” and it makes clear that this is true in foreign relations just as it is true in the domestic arena. And the Court distances itself from some of the broad presidential power dicta in United States v. Curtiss-Wright Export Corp., pointing out that the Court in Curtiss-Wright “did not hold that the President is free from Congress’ lawmaking power in the field of international relations.”

Notwithstanding these statements, it is difficult to see this decision as supporting a shift away from the historically exceptional treatment of foreign relations law. The Court’s actual holding is that in this case the president is allowed to disregard a duly enacted federal statute on separation of powers grounds, hardly a “normal” state of affairs. In reaching this conclusion, moreover, the Court repeatedly emphasizes the importance of having one governmental voice relating to the issue of recognition, a consideration that is specific to the area of foreign affairs. It is also worth noting that the Justices who purportedly have been leading a shift by the Roberts Court towards normalization, including the Chief Justice himself, are in dissent in Zivotofsky.

Supreme Court decisions are only a small part of the overall landscape of foreign relations law. Even within that limited domain, however, Zivotofsky calls into doubt recent suggestions that foreign relations law is undergoing a revolutionary shift.