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Ryan Scoville (and Eugene Kontorovich) on the Jerusalem Pasport Case
Michael Ramsey

At Opinio Juris, Ryan Scoville (Marquette Law) has a great post on Zivotofsky v. Kerry, the Jerusalem Passport case.  From the introduction:

Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, Zivotofsky concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. Oral arguments are scheduled for the fall. The case has generated a lot of interesting commentary, the most impressive of which is a pair of law review articles (here and here) by Robert Reinstein, who uses textual and historical analysis to argue that the President shares the recognition power with Congress. In this post, I want to sketch out an alternative view that grants substantial recognition powers exclusively to the President while also making sense of Professor Reinstein’s historical research.

Briefly, Professor Scoville's claim (which I generally think is right) is that the President has an exclusive power of de jure recognition but Congress has a shared power of de facto recognition.  As he explains:

... I want to suggest first that it’s important to be precise about what “recognition” means. International law of course differentiates between ... recognition de jure and de facto. With de jure recognition of a state, the United States expresses that a given political unit qualifies as a state under international law and thus holds the rights and obligations that accompany statehood, including the right to invoke sovereign immunity and the act of state doctrine as defenses in court. De jure recognition of a government, by contrast, is acknowledgment of a foreign government as the depository of a state’s sovereignty. This kind of recognition signals a general willingness to enter into normal diplomatic relations and facilitate the government’s exercise of the state’s sovereignty vis-à-vis the United States. Finally, de facto recognition also entails a willingness to carry on official relations, but without necessarily saying anything about the particular form those relations will take. One can de facto recognize a foreign government, for example, without exchanging ambassadors or providing its leaders with immunity from suit. ...

These distinctions offer a useful way to conceptualize the separation of powers problem in Zivotofsky. To say that Congress holds a concurrent power to recognize de jure would mean that Congress can formally establish the willingness of the United States to enter into normal diplomatic relations with a foreign government. It would also mean that Congress can decide who gets to invoke sovereign immunity and the act of state doctrine in court and otherwise exercise the prerogatives of statehood under international law. But if Article I provides only for a concurrent power to recognize de facto, then Congress can do no more than establish official relations that fall short of de jure recognition. This might include, for example, trade relations.

This all seems rights as far as it goes, and it's a very insightful refinement of the recognition arguments in Zivotofsky.  And, as he goes on to say, it suggests that the President does not have an exclusive power to say whether Jerusalem is in Israel (because that is -- probably -- a de facto rather than a de jure conclusion).

Eugene Kontorovich has a related post at Volokh Conspiracy arguing even more strongly that Zivotofsky does not implicate the President's exclusive recognition power.  Again, I entirely agree.  The President does not, directly, have an exclusive recognition power.  The President has an exclusive power to receive ambassadors.  That power encompasses the de jure recognition power Professor Scoville discusses, because de jure recognition is exercised by receiving ambassadors.  But it does not encompass de facto recognition (or at least not some aspects of it), because de facto recognition can be done other than by receiving ambassadors (for example, by trade relations, again as Scoville says).  And, as Kontorovich says, the passport case has nothing to do with receiving ambassadors.

But, to repeat myself, I don't think this gets Professors Scoville and Kontorovich where they want to be in Zivotofsky itself.  Congress needs a power to act in the first place, before we even get to the question of exclusive presidential power.  I entirely agree that Congress could, for example, pass trade regulations that defined "products of Israel" to include products made in Jerusalem -- and even that said "for purposes of this statute Jerusalem shall be treated as part of Israel."  But Congress' power over passports is much more tenuous. 

A passport is a communication from the State Department to foreign governments.  At least, that was its historical function.  Thus it is an exercise of diplomacy.  Congress does not have a general power over diplomacy.  (Professor Scoville may disagree, because he has a great article somewhat to the contrary).  But in my view, Congress has no enumerated-power-based interest in having Zivotofsky's passport say anything about the status of Jerusalem.  

Professor Kontorovich suggests that the passport power arises from Congress' power over immigration and naturalization, but that also seems a stretch.  I agree that Congress' naturalization power allows Congress to declare that Zivotofsky is a U.S. citizen because his parents are U.S. citizens.  But the status of the territory on which he was born is, for immigration and naturalization purposes, irrelevant.

In sum, I think the more interesting issue in this case is where Congress might get a power to force a passport to reflect Jerusalem's status.  That Congress can declare its view of Jerusalem's status in statutes clearly within its enumerated power seems correct.

Further note: Ryan Scoville also has his own blog on international matters, which is worth watching for constitutional foreign affairs law commentary.