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11/03/2011

Originalism at the Supreme Court: M.B.Z. v. Clinton and Presidential Power in Foreign Affairs
Michael Ramsey

Is Jerusalem part of Israel, and what does the Constitution’s original meaning have to say about it?  On November 7, the Supreme Court will consider a federal statute that gives U.S. citizens born in Jerusalem the right to have their passports reflect birth in “Jerusalem, Israel.”  The President (through the Secretary of State) refuses to enforce that statute, saying that it violates his constitutional power to recognize foreign governments and conduct the foreign affairs of the United States.  The claimant before the Court, a U.S. citizen born in Jerusalem, wants a passport that shows a birthplace of “Jerusalem, Israel” (as the statute provides) and is suing the Secretary of State to get one.  The case is M.B.Z. v. Clinton; here is SCOTUSblog’s summary and discussion

In this post I’ll consider an originalist approach to the first of two questions the Court will take up (with a second post to follow).  The court of appeals dismissed M.B.Z.’s claim as a “political question” which courts should not decide because it implicates the President’s conduct of foreign affairs.  It relied in part on then-Justice Rehnquist’s opinion in the splintered decision of Goldwater v. Carter, which challenged President Carter’s unilateral termination of a treaty between the United States and Taiwan.  According to Rehnquist in Goldwater, “the basic question presented … is political and therefore nonjusticiable because it involves the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.”  The idea, apparently, is that the conduct of foreign affairs is so sensitive and fraught with danger that courts should not decide cases with substantial foreign affairs overtones.

That view, I think, cannot be supported by the text’s historical meaning.  (The following discussion is adapted from pp. 321-41 of The Constitution’s Text in Foreign Affairs, where I criticize Rehnquist’s view).  To begin, M.B.Z. is a straightforward case of constitutional interpretation: does Congress have power to direct the President to, in effect, acknowledge Jerusalem as part of Israel?  (Note that the question is not whether Jerusalem is in fact part of Israel; it’s only the extent of the constitutional powers of Congress and the President).  Normally we would expect courts to have power over such constitutional questions – as Marshall said in Marbury v. Madison, it is “emphatically the province and duty of the judicial department to say what the law is.”  And it’s important that Marshall saw the courts as having both a right and a duty to decide.  As Justice Scalia wrote for the Court in a modern foreign affairs case:  “Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them.”

I agree.  The textual source of their duty is Article VI: “all … judicial Officers … shall be bound by Oath or Affirmation, to support this Constitution.”  Supporting the Constitution, for a Court, includes enforcing constitutionally enacted statutes at the behest of those entitled to make claims under them.  If Congress’ act is constitutional, Article VI obligates the Court to uphold the right M.B.Z. claims – and of course if the Act isn’t constitutional, it doesn't – with the further consequence that the Court is obligated to decide the Act's constitutionality.

To be sure, there are situations where the Court shouldn’t decide a foreign affairs case.  As Scalia wrote, the case must be “properly presented” – the court must have jurisdiction, the plaintiffs must have standing, there must be a sufficient source of law on which the court can base its decision, etc.  But all these requirements are met in M.B.Z.  Rehnquist’s idea in Goldwater was that something takes foreign affairs controversies outside the scope of courts’ authority even if they are otherwise “properly presented.”   

There are at least three main originalist difficulties.

First, there’s no material evidence that the founding generation took Rehnquist’s view (much less that they wrote it into the Constitution).  For example, Hamilton’s Federalist 78, an extended discussion of judicial review, speaks in general terms without noting a foreign affairs exception (or even a need for courts to be especially cautious in foreign affairs.)

Second, the Goldwater argument seems to conflate two different types of foreign affairs decision-making authority.  The President’s “executive Power” likely does include substantial discretion to set the nation’s policy with respect to foreign nations.  The extreme difficulty in separating law from policy in this area may indeed support the idea of judicial abstention (or at least deference).  Marshall in Marbury suggested something like this, noting that matters of executive discretion are in their nature political, not subject to judicial review.  Marshall connected this idea directly to foreign affairs in United States v. Palmer in 1818, holding that the courts should follow the political branches’ determination in deciding whether a revolutionary government in South America was legitimate, because “such questions are generally rather political than legal in their character” and to do otherwise “would transcend the limits prescribed to the judicial department.”  Thus if the question in M.B.Z. were whether Jerusalem is actually part of Israel, it might well be appropriate for courts to refuse to decide.

But the question in M.B.Z. (as in Goldwater) is entirely different.  These cases are not foreign affairs cases in the sense of Palmer – they are about the domestic allocation of foreign affairs authority.  Thus they are not about the exercise of executive discretion in foreign affairs – they ask the antecedent question whether as a constitutional matter the executive has full discretion or whether Congress can limit it.  They are not about how to conduct foreign affairs; they are about the meaning of the Constitution.

Third, once M.B.Z. is understood this way, it becomes clear that in multiple cases early post-ratification courts decided similar questions without any suggestion that courts might have an obligation (or even discretion) not to do so.  In Little v. Barreme (1804), Marshall found that the President exceeded a congressional statute authorizing limited hostilities against France; thus the seizure of the claimant’s ship at the President’s direction was unlawful as beyond the executive power.  In United States v. Smith (1806), Justice Paterson, a former Convention delegate sitting as a circuit justice, found that the President’s executive power did not allow him to violate the federal Neutrality Act by authorizing an attack on a Spanish colony.  Earlier, in Bas v. Tingy (1800) the claimant asked the Supreme Court to determine whether the United States was at war with France, so that France was an “enemy” within the meaning of an applicable federal statute.  The Court delivered an array of opinions, none doubting that the case was within the Court’s power to decide.  And in Brown v. United States (1814), Marshall found unconstitutional the President’s seizure of alien property during wartime because it had not been authorized by Congress – again without any suggestion of political question abstention.

In contrast, I’m not aware of any judicial opinion in the early period that asserted (or even considered) political question abstention of the type suggested in M.B.Z.  It’s true that Marshall acknowledged executive policy discretion in Marbury and Palmer, but as noted those cases involve a different sort of challenge, and apparently Marshall did not think Little (decided a year after Marbury) or Brown even arguably posed “political questions” even though they challenged presidential foreign affairs power in wartime.  That is presumably because they did not involve the exercise of executive discretion, but rather involved interpretation of legal texts, a power committed to the Court.

To be clear, one might conclude that the Constitution gives the President exclusive power over the issue in M.B.Z.  (That’s how Justice Brennan wanted to decide in Goldwater, and I think he was right: the President should have won Goldwater on the merits).  But that is not refusing to decide a political question – it’s deciding that under the Constitution the President wins.

On the last point, the court of appeals and some commentators say that this is a “political question” because (among other things) conduct of foreign affairs is constitutionally given to the President.  This conflates “political question” abstention with a decision about the Constitution’s meaning.  The constitutional question in M.B.Z. is precisely whether the President has exclusive control over this aspect of foreign affairs (and thus can disregard the statute).  You can’t avoid deciding this question by declaring that the Constitution gives control of foreign affairs to the President; saying that is deciding the question.

In sum, the Constitution (Article VI) requires courts to support the Constitution, and to a judge, supporting the Constitution should mean enforcing duly-enacted statutes unless they are unconstitutional.  Nothing in the Constitution licenses courts to duck cases just because they relate to foreign affairs.  To be sure, courts shouldn’t substitute their judgment for the President’s in the conduct of foreign affairs.  But the question of how the Constitution allocates foreign affairs power among the branches isn’t an (executive) question of foreign affairs policy; it’s a (judicial) question of what the Constitution means.  Early court decisions clearly distinguish between cases like Palmer (involving the conduct of foreign affairs) and Little and Brown (involving the constitutional allocation of foreign affairs powers).  M.B.Z. is in the latter category and under the original meaning of the Constitution the Court should decide it.