Constitutional Law - Separation of Powers - D.C. Circuit Holds That Recognition of Foreign Governments Is an Exclusive Executive Power

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CONSTITUTIONAL LAW--SEPARATION OF POWERS--D.C. CIRCUIT HOLDS THAT RECOGNITION OF FOREIGN GOVERNMENTS IS AN EXCLUSIVE EXECUTIVE POWER.--Zivotofsky v. Secretary of State, 725 F.3d 197 (D.C. Cir. 2013).

From civics classes to Supreme Court opinions, the executive branch is often called the "sole organ" of American foreign policy. (1) Over time, a view of "sole" or plenary executive control over foreign affairs has hardened. (2) And yet, because Congress rarely passes statutes directly countermanding the executive's foreign policy judgment, the scope of much of the executive's "exclusive" power in this field--power it can exercise even against congressional command--remains untested.

Recently, however, in Zivotofsky v. Secretary of State, the D.C. Circuit confronted a statute that, it found, sought directly to alter an executive foreign policy decision not to recognize Israeli sovereignty over Jerusalem. In striking the statute down, the court held that the recognition power lay exclusively within the President's control and could not be contradicted by Congress.' As a result, the statute, which gave Jerusalem-born American citizens the right to have "Israel" rather than "Jerusalem" marked as the place of birth on their U.S. passports, violated the separation of powers. (5)

In coming to this conclusion, the court relied primarily on Supreme Court dicta and historical practice following ratification of the Constitution. The evidence the court marshaled, however, arose outside the context of congressional-executive disagreement, the only context in which the "exclusivity" of executive power can be determined. For this and other reasons, while the court's evidence supports a finding of inherent executive authority--the President's ability to exercise the recognition power absent congressional action--it does not support a finding of exclusive authority that can withstand congressional contradiction. By importing inherent power evidence into the exclusive power context, the D.C. Circuit missed an opportunity to clarify the underpinnings and scope of exclusive presidential power and to engage fully with the lively and important debate about whether Congress or the President has the final say in foreign affairs.

"The status of the city of Jerusalem is one of the most contentious issues in recorded history."' Currently, both Israelis and Palestinians claim Jerusalem as their capital and part of their state. (7) As a result, although the United States has recognized Israel since its declaration of independence, "Presidents from Truman on have consistently declined to recognize Israel's--or any country's--sovereignty over Jerusalem." (8) Pursuant to this policy, the State Department has established its Israeli embassy in Tel Aviv rather than Jerusalem, and issues passports identifying Jerusalem-born citizens' place of birth not as "Israel," but only as "Jerusalem." (9)

Congress has attempted to force the executive to alter its Jerusalem recognition policy. In 1995, Congress statutorily directed the President to relocate the U.S. embassy from Tel Aviv to Jerusalem. (10) But the law included a waiver provision, (11) forestalling a direct conflict between the President and Congress over recognition.

Such a direct conflict arose in 2002, when President George W. Bush signed a foreign affairs omnibus bill that directed the State Department, upon request, to record a Jerusalem-born citizen's place of birth as "Israel" on her U.S. passport. (12) No waiver provision was included. In keeping with his practice of signing broad, generally agreeable legislation and declining to enforce provisions that he believed trammeled his authority, (13) President Bush issued a signing statement construing the Jerusalem passport section as merely advisory because he believed it would otherwise impermissibly interfere with the President's foreign affairs powers. (14)

That same year, Menachem Zivotofsky was born in Jerusalem to two U. …

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