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Calling the Tune

- November 8, 2011

The president “shall take care that the laws be faithfully executed”: is that a duty, or a power?  Over time, with the growth of the executive branch and the American administrative state, “presiders” have become “deciders”: hence Elena Kagan’s famous law review novella “Presidential Administration,” a how-to guide of sorts.

Kagan is now on the Supreme Court, of course, and yesterday had to deal with just this issue. A 2002 law allows Americans born in Jerusalem to place on their passports, as the place of their birth, “Israel.”  President George W. Bush objected at the time, in one of his many signing statements, that this bound the executive branch to a diplomatic position it did not hold (U.S. policy is neutral on the provenance of Jerusalem) and should be under no obligation to assert. President Obama has affirmed this position. And so Menachem Zivotovsky (or rather his parents – Menachem was born in 2002) has now sued to uphold the plain text of the statute.

The oral arguments for Zivotovsky v Clinton came before the Court today (see here for a transcript, or see the Washington Post description.) This is a neat case since it is a good example of the president simply disregarding extant statute on the grounds that it is an unconstitutional infringement on presidential authority. We normally don’t have such a clear view – presidents object to statute all the time, via signing statements (or not so publicly), but the fact and manner of implementation is out of public view.  Yet it is clearly not an isolated claim. The White House Office of Science and Technology Policy (OSTP) is not usually a hotbed of constitutional concern. But OSTP was recently hauled before a Congressional hearing to justify its staff having met with Chinese officials this past spring, in violation of a budget rider banning OSTP from using its funds for bilateral interaction with such officials (whom Congress figured mainly wanted to sneak off with said science and technology.)  The Office of Legal Counsel in the Department of Justice has ruled that this too constitutes an unconstitutional limit on the president’s discretion to choose the US’s instruments of diplomacy. And here (unlike OLC’s ruling with regard to the War Powers Resolution and Libya – see here) the Obama administration thinks OLC is spot on.

The courtroom drama prompted by Zivotovsky is more rare than one might think. Often, courts will evade such conflicts on “political question” grounds – that Congress and the President should work it out. Where Congress doesn’t take a clear stand in opposition to presidential action, that often makes sense. But here Congress did take a clear, collective institutional position. Further, often presidential interpretation of the law does not “harm” anyone in a way that grants legal standing to bring the case to court. But here, presidential action created just such a claim. So the Court gets to wave off claims of “coordinate construction” and hew to its famous 1803 assertion in  Marbury v Madison that “It is emphatically the duty of the Judicial Department to say what the law is.”

The outcome in Zivotovsky will likely favor the executive branch. Diplomatic recognition is closely tied to the express presidential power of receiving ambassadors (Article II, 3) – closer, then, to the pardon power than to other, shared, authorities.

Still, we can hope that the case will serve to help undermine the “sole organ” doctrine beloved of presidents and enshrined in the 1936 Curtiss-Wright case. The idea that Congress cannot intervene in foreign policy is based on an out-of-context snippet of a John Marshall speech (when he was a member of Congress) arguing mostly the opposite. (For details, see Louis Fisher’s 2006 article linked here.)  Justice Antonin Scalia raised the issue when he noted that “Our cases say repeatedly that the president is the sole instrument of the United States for the conduct of foreign policy, but it doesn’t necessarily mean that the president determines everything in foreign policy.”  In many cases, Congress can and should call the tune that the organ must play.