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04/21/2014

Supreme Court Will Review the Jerusalem Passport Case (again)
Michael Ramsey

The case asks whether Congress by statute may require the State Department to issue a passport to a U.S. citizen born in Jerusalem reflecting birth in “Jerusalem, Israeli.”  The President prefers to keep the political status of Jerusalem ambiguous, and the D.C. Circuit held the statute unconstitutional as infringing on the President’s diplomatic power.  On Monday the Court agreed to hear the case, now called Zivotofsky v. Kerry.  (In an earlier appeal of the same case, then called Zivotofsky v. Clinton, the Court – reversing the D.C. Circuit – found the constitutionality of the statute not to be a political question.)

As I argued when the D.C. Circuit decided the case, I think the court of appeals got the right answer for the (somewhat) wrong reason:

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.

It’s not entirely clear whether the case in its current posture squarely presents the question of Congress’ power.  Here is the question presented (from the petitioner’s brief):

Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

My view is that the statute doesn’t impermissibly infringe an exclusive presidential power so much as it exceeds Congress’ enumerated powers.  The question is probably open-ended enough that the Court can go that way if it wants.  At the oral argument in the previous case, several Justices expressed some skepticism on the source of Congress’ power (see this account of the prior oral argument from Dahlia Lithwick), although the previous opinion did not touch the issue.

The problem with the D.C. Circuit opinion, in my view, is that it may suggest other acts of Congress, though clearly within Congress’ enumerated power, infringe the recognition power.  For example, in regulating foreign commerce, I think Congress can treat foreign territory as belonging to a particular sovereign (or not) even if the President doesn't want to take a position, or takes a different position.  In this sense, the President's recognition power isn't exclusive, so long as Congress is acting pursuant to its own independent powers.  For this reason, Supreme Court review seems like a good result (in addition to further signaling that the Court is interested in separation of powers matters).

UPDATE:

Further thoughts from Peter Spiro (at Opinio Juris) here, including:

To use the vocabulary of the foreign relations canon, a Supreme Court ruling against the executive branch in Zivotofsky could severely “embarrass” the President in the conduct of foreign relations. Think unruly crowds outside U.S. embassies.

That would have been inconceivable 20 years ago. But foreign relations law is being normalized. (For an excellent take on the shift, see Harlan Cohen’s piece here.) Foreign affairs has long been immune to judicial activism; maybe no longer. The Court may still hesitate to the extent it sees some real, even uncabinable, damage to the Middle East peace process in siding with Congress on the question. The easier path would have been to duck the case altogether. By accepting review, it may already have tipped its hand in a new direction.

Unlike (I think) Professor Spiro, I applaud the "normaliz[ation]" of foreign relations law (which I would call having a rule of law in foreign affairs).  Of course, it should be an actual rule of law, not a rule of whatever judges think best.  But like the Court in the first round of this case, I don't see why courts can't play their constitutional role in foreign affairs cases, as in other cases -- as indeed they did, in foreign affairs cases from near the founding era.

But I still think the President should win this one.