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07/26/2013

D.C. Circuit (Rightly) Upholds Executive Power in the Jerusalem Passport Case
Michael Ramsey

Earlier this week the D.C. Circuit (again) decided the long-running Jerusalem passport case (Zivotofsky v. Secretary of State) in the President's favor, invalidating an Act of Congress that allowed U.S. citizens born in Jerusalem to have their passport reflect birth in "Jerusalem, Israel."  (Opinion here; interesting comment by Eugene Kontorovich here).

I agree with the result, though I would get there by a somewhat different route.

According to the court (Karen LeCraft Henderson writing a thorough and scholarly opinion), the President has exclusive power over recognition -- a power found not so much through text and "originalist evidence", which she finds inconclusive after careful consideration, but from longstanding practice dating to the Washington administration.  While Congress has power to legislate regarding passports, the court says, it cannot do so in a way that infringes the recognition power.  The law at stake infringes that power, because sovereignty over Jerusalem is contested and the President, as part of the recognition power, is entitled to avoid taking a position on that question.

I have less confidence that the Constitution directly gives the President an exclusive recognition power (though it might, through the ambassador reception clause).  See here for further skepticism from Jack Goldsmith at Lawfare.  Rather, I think the decisive issue is Congress' power.  The court assumes Congress has power over passports without much textual analysis.  ("Neither party has made clear the textual source of the passport power in the Constitution, suggesting that it may come from the Congress’s power regarding immigration and foreign commerce.").  It may be that Congress has some power over passports from these sources, but the Act in question has nothing to do with either of them.  Instead, it is an attempt to direct U.S. policy regarding the sovereign status of Jerusalem.  Or, put even more sharply, it is an attempt to force the President to make a diplomatic statement endorsing Israel's sovereignty over Jerusalem.

That is the exercise of a diplomatic power, not the exercise of a power over immigration or commerce.  And no other enumerated power even arguably allows Congress to exercise diplomatic power in this context.  In sum, I think the court made the case harder than it needed to be by assuming Congress had an Article I power to pass the law in the first place.  (Similarly Professor Goldsmith, who finds the case a difficult one in the post noted above, appears to assume an Article I power).

There is still the question of the source of the President's power, but this is (for me anyway) an easy one: the President's Article II, Section 1 "executive Power" includes diplomatic power, which in turn includes the power to formulate and announce the United States' position (or lack of position) on the status of Jerusalem.

So I come out in the same place as the court: the President has the exclusive power to speak for the United States on the status of Jerusalem. But rather than saying the President's power overrides Congress' power (which seems a tricky claim given the admitted lack of textual support), I would say the President has the power and Congress doesn't.  And, contrary to Professor Goldsmith, I think that conclusion rests firmly on the Constitution's text.

NOTE:  The D.C. Circuit previously dismissed Zivotofsky's claim as a political question and the Supreme Court reversed (a decision I applauded).  I would add that the D.C. Circuit's decision on the merits confirms that result -- as the new opinion shows, it's just an ordinary separation of powers question that involves ordinary tools of constitutional analysis and does not require the court to engage in any discretionary foreign policy activities that are properly exercised by another branch. 

FURTHER NOTE:  Immodesty compels me to add that the D.C. Circuit's merits decision cites the article I co-authored with Saikrishna Prakash, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001) a couple of times, most notably on p. 18.  Modesty compels me further to add that the citations are principally to our description of Washington administration diplomacy, on which Professor Prakash had the lead.  Congratulations to him.