Kontorovich v. Ramsey on Zivotofsky
Michael Ramsey
Eugene Kontorovich and I debate -- or maybe discuss, since we don't disagree all that much, except as to the right result -- the issues in Zivotofsky v. Kerry (at Jeffrey Rosen's National Constitution Center website).
To recap, a short version of my view:
(1) The President has diplomatic power from Article II, Section 1's grant of "the executive Power," but this power is not exclusive. So Congress can pass laws that interfere with the President's diplomacy without raising constitutional problems. For example, Congress can impose a trade embargo on a country with which the President is trying to establish good relations. As Justice Scalia said in the oral argument, Congress is free to antagonize any country it wants to. (Dahlia Lithwick at Slate makes fun of that comment here, but Scalia has it right). The idea that the President has some wide-ranging exclusive power to engage with foreign nations is entirely contrary to the Constitution's text (which gives many foreign affairs powers to Congress) and history (notably including the views of Hamilton, the foremost advocate of executive power in the founding era, who described presidential and congressional power in foreign affairs as concurrent). Thus, if Congress has the power to direct Zivotofsky's passport to show birth in Israel, the President must comply, even in the face of damage to his foreign policy. (Professor Kontorovich and I basically agree on this point).
(2) But, Congress must always act pursuant to the powers given to it in the Constitution. The full quote from Scalia at oral argument is "If it [the act] is within Congress' power, what difference does it make if it antagonizes foreign countries?" Again, exactly right: it makes no difference, if Congress has power in the first place. I doubt it does. The only possible Article I, Section 8 powers are foreign commerce and naturalization. Congress may have some power over passports in connection with the commerce power, but how the passport reflects Zivotofsky's birthplace seems far removed from any commercial interest Congress might have. In our discussion, Professor Kontorovich puts much weight on the naturalization power, but I'm unpersuaded. Again, the need to identify U.S. citizens might give Congress some power over passports. But here it seems clear the Congress' purpose had nothing to do with the identification aspects of a passport. Instead, it was using the passport to send a message (or rather to allow Zivotofsky to send a message) about the status of Jerusalem. No enumerated power of Congress supports this role.
So in my view the President should win, but not on the broad grounds the President principally argues.