The Supreme Court just gave presidential power a passport

Some parts of presidential foreign policy are more fun than others. (Markus Schreiber/ Associated Press)
Congress’s role in foreign policy has been in the news in recent weeks. Sometimes lawmakers have tried to avoid responsibility, as with the war (or is it?) with the Islamic State. At other times, they’ve tried inserting themselves, as with the Iran nuclear negotiations. The Supreme Court has just weighed in on another such attempt, settling a decade-long constitutional dispute between the elected branches.
Back in 2002, Congress passed a law allowing Americans born in Jerusalem to state on their passports that they were born in “Israel.” President George W. Bush objected in a signing statement that this provision bound the executive branch to a diplomatic position it did not hold — officially, U.S. policy is neutral on the provenance of Jerusalem — and should be under no obligation to assert. President Obama affirmed this position. Thus Menachem Zivotofsky (or his parents, anyway; he was born in 2002) sued to uphold the plain text of the statute.
The case took some detours and was around long enough to sue a series of secretaries of state — Zivotofsky v. Rice became Zivotofsky v. Clinton became Zivotofsky v. Kerry. But the basic question has remained, as Justice Anthony Kennedy put it in the majority opinion, “whether the President has the exclusive power to grant formal recognition to a foreign sovereign” and whether Congress can force him to use that power in a certain way. The Supreme Court has ruled “yes,” and “no,” respectively. That’s a win for presidential power.
This case is intriguing, since it is fairly rare in several respects. First, it is a good example of the president simply disregarding an extant statute on the grounds that it is an unconstitutional infringement on presidential authority. Diplomatic recognition is closely tied to the express presidential power of “receiv[ing] ambassadors and other public ministers” (Article II, 3); thus, presidents feel, Congress should butt out. After all, those presidents argue, they are the “sole organ” of American foreign policy — a phrase they adore, stemming from the 1936 Curtiss-Wright case.
Yet this doctrine is named after an out-of-context snippet of a John Marshall speech — back before he was on the Court himself — arguing mostly the opposite. (For details, see Louis Fisher’s 2006 article here.)
Justice Antonin Scalia raised this in an earlier iteration of this case when he noted, “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.” That is, in some areas Congress can and should call the tune that the presidential organ must play. Is this one of them?
We normally don’t have such a clear view of this sort of dispute. Presidents object to statutes all the time, via signing statements or other even less salient mechanisms, but whether and how those statutes get implemented is normally out of public view.
Further, these kinds of arguments don’t often turn into courtroom drama. For one thing, presidential interpretation of the law usually 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 (albeit self-serving) 1803 assertion in Marbury v. Madison that “It is emphatically the duty of the Judicial Department to say what the law is.”
Even then, courts will often evade such conflicts on “political question” grounds – that Congress and the President should work it out themselves. Where Congress doesn’t take a clear stand in opposition to presidential action, that could make sense. But here Congress did take a clear, collective institutional position. Thus, when the D.C. Circuit court tried to say in 2011 it was a political question anyway, the Supreme Court said (in Zivotofsky v. Clinton), effectively, ‘nice try, make a decision.’
In July 2013, the D.C. Circuit did just that. It held that Congress had overstepped its bounds, since “the provision… impermissibly intrudes on the President’s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations.” And now, getting a second bite at the case itself, the Supreme Court has agreed.
The oral arguments in November 2014 (a transcript is here) gave a sense of the basic arguments.
The plaintiff argued this was not about recognition at all but about “enabling an individual to exercise their choice to self-identify as they choose.” Indeed, Attorney Alyza Lewin managed to say with a straight face that identifying Jerusalem as Israel “is not a political declaration,” to which Justice Kennedy quite properly replied “well, then, I’m not sure why…Congress passed it…!” (In his majority opinion, Kennedy states that “Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy.” Justice Elena Kagan, in oral arguments, put it differently: “this is a very selective vanity plate law.”) Dissenters agreed — Congress has passed many laws governing passport issuance over the years, and the constitutional issue of recognition was thus superfluous.
The administration, via Solicitor General Donald Verrilli, argued that even then, the law “forces the Executive Branch to engage in diplomatic communications that contradict our official recognition position,” which Congress couldn’t do. And while Lewin argued that recognition itself could be Congressionally dictated (“the law passed by Congress would trump the President”), Verrilli held that recognition “is an exclusive power with the President. Recognition is not lawmaking. It is an executive function.”
The Court effectively signed onto this latter position. Thus, its decision was at once quite sweeping and relatively narrow. On the one hand, it placed the recognition power somewhere near the pardon power as an unchecked and perhaps uncheckable presidential power. Justice Kennedy held that for the framers of the Constitution, receiving an ambassador was “tantamount to recognizing the sovereignty of the sending state,” adding, the “Constitution thus assigns the President means to effect recognition on his own initiative.” By contrast, “Congress… has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.” And since “the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not,” the president’s power must prevail even when Congress is not initiating but seeking to modify those diplomatic relations. “The formal act of recognition is an executive power that Congress may not qualify.” Requiring the president to recognize Jerusalem as part of Israel was such a qualification.
On the other hand, the Court says several times that despite the sole organ language of Curtiss-Wright, that case “did not hold that the President is free from Congress’ lawmaking power in the field of international relations.” Indeed, “the Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” There are even ways Congress could undermine in practice a president’s recognition of a given nation (Cuba is not mentioned, but seems the obvious reference here.) The dissenters naturally went further — in an intriguing aside, Justice Clarence Thomas, the only vote in favor of unfettered presidential war power in the 2004 Hamdi detainee case, suggested that Justice Scalia, the only vote in favor of unfettered executive power in the 1988 Morrison v. Olson case, had in dissent here now converted to supporting a parliamentary form of government.
So, the bad news for Congress: this is a constitutional issue, and one that falls within the presidential toolbox. The good news: the congressional toolbox is plenty big too. The sole doctrine is, well, a pipe dream. Time to get on with that Authorization for the Use of Military Force!