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Zivotofsky on Monday
Michael Ramsey

Zivotofsky v. Kerry, which may be the most important originalist case at the Supreme Court this term, will be argued Monday 11/3.  (But, that's not saying much, as the term generally lacks cases of originalist interest).  This is the Jerusalem passport case; here is the question presented:

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."

At Lawfare, Jack Goldsmith argues that this isn't the right question (or at least that this question can be avoided) -- there's no need to get into questions of exclusive power because Congress lacks an enumerated power to pass the statute in the first place:

The issue is the constitutionality of a federal law that requires the Secretary of State to record “Israel” as the place of birth for a citizen born in Jerusalem who requests the designation.  The court below, and the Solicitor General, maintain that this statute intrudes into an exclusive domain of Executive power, and is thus unconstitutional.  But there is a prior constitutional question of great significance that the Solicitor General hints at dimly near the end of his brief (pp. 46-48): Where does Congress get the power under Article I to require the designation “Israel” on a passport?  The Petitioner says in passing that the legislation “falls squarely within Congress’ power to regulate the issuance of passports.”  To which one might ask: What power to regulate the issuance of passports?

I agree.  Here's my reaction to the lower court decision when it came out in 2013.  In relevant part:

... I think the decisive issue is Congress' power.  The [D.C. Circuit] 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.

Marty Lederman at Just Security seems to agree as well (his long post is more subtle and complex than this excerpt, but I like this excerpt): 

Congress enacted Section 214(d) not to advance any of the legitimate Article I objectives that are the basis for its other passport regulations, but instead to force the Executive branch itself to say something to foreign officials inconsistent with what the Executive branch would (and does) otherwise say–and indeed, inconsistent with the official view of the U.S. government of an important and sensitive issue of sovereignty.  (The passport is, and is understood to be, a form of official government speech.  As the Court explained in Haig, it is, at a minimum, “a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer.”  Thus, every U.S. passport, including Zivotofsky’s, states at the very outset:  “The Secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection.”).

If the Court rules for Zivotofsky, foreign audiences will reasonably understand the word “Israel” on the passports of thousands of U.S. citizens born in Jerusalem to be a statement on behalf of the United States that Jerusalem has (and/or ought to have) sovereignty over that city.  And that would, of course, be precisely the effect Congress expressly designed the statute to accomplish:  Section 214 is, after all, entitled “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.”

Again, the key is not that the President has an exclusive power over U.S. statements regarding the status of Jerusalem, but that in this context Congress has no power.  If the context were different -- if, for example, the regulation at issue was a trade regulation designating products made in Jerusalem as products "of Israel," then Congress would plainly have an enumerated power (commerce) and the President would have no constitutional objection.  (Here, though, is a strong counter-argument by Eugene Kontorovich that Congress does have an enumerated power in Zivotofsky).

Two further points: 

(1)  While Professors Goldsmith and Lederman don't reach the issue, I think it is very clear that the President does not have an exclusive power here.  This is a powerful amicus brief by the great foreign relations law historian Louis Fisher rejecting the ideas of exclusivity expressed in United States v. Curtiss-Wright, on which the lower court partly relied.  Another good history-oriented amicus brief is this one by Ted Olson on behalf of the House of Representatives, also attacking the exclusive presidential power view (and citing The Constitution's Text in Foreign Affairs).  

I agree with all they say (even though I come out on the other side in the end).  Nothing in the Constitution gives the President an exclusive power over diplomacy, in the sense of overriding otherwise-legitimate acts of Congress that are inconsistent with what the President is saying diplomatically.  Rather, what the Constitution provides (as Alexander Hamilton said in Pacificus No. 1) is concurrent power.  The President can act within his sphere (diplomacy) and Congress can act within its sphere (e.g., foreign commerce).  If a commercial regulation (e.g., the rule that products of Jerusalem are treated as products of Israel for tariff purposes) conflicts with what the President says about the status of Jerusalem ... well, so be it.  That's separation of powers.  Curtiss-Wright's idea that the United States must speak with one voice in foreign affairs is pure judicial invention.  Separation of powers means that the United States does not speak with one voice, because there are multiple power centers.

(2)  I can't help noting that the President's case rests heavily on the executive power over foreign affairs (that is, the grant of substantive foreign affairs powers to the President in Article II, Section 1).  Without that power, it is very hard to see the source of any presidential power here.  The Solicitor General also invokes the President's power to receive ambassadors, but that seems very remote from what is at stake in Zivotofsy.  Congress' statute says nothing even remotely bordering on the question of what ambassador to receive or (derivatively) what government of a country to accept as legitimate.  Rather, it seems clear that what's at stake is the President's general diplomatic power -- what messages to send foreign governments (in this case, about the status of Jerusalem).  Everyone seems to agree that the President has this power.  But it must come from the Article II, Section 1 vesting clause; there simply is no other plausible textual basis.