Academic journal article Presidential Studies Quarterly

Zivotofsky V. Kerry: An Unnecessary Decision Grounded on Weak Precedents

Academic journal article Presidential Studies Quarterly

Zivotofsky V. Kerry: An Unnecessary Decision Grounded on Weak Precedents

Article excerpt

Zivotofsky v. Kerry (Zivotofsky II) (1) is, at first glance, a very simple case. The Court ruled 5-4 that the president's power to recognize foreign nations is exclusive. As a result, Congress's attempt to constrain that authority via section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003 was unconstitutional. There, Congress had directed the president to include "Israel" as part of the designation of birthplace on the passport for any American born in Jerusalem.

The dissents addressed two issues. The first was to lament that the decision embodied a radical departure from precedent. "Never before," said Chief Justice Roberts, "has this Court accepted a President's direct defiance of an Act of Congress in the field of foreign affairs." (2) Critics of the decision also maintained that it was a foreboding course change that clearly favored the president in the Court's interpretation of the constitutional balance of powers (Goldsmith 2015; 2016).

A second issue that was addressed in dissent by Scalia and touched upon by Thomas in his concurrence concerned the nature of the recognition power and whether section 214(d) impinged upon it at all. This debate focused on the scope and definition of the respective branches' constitutional powers. It was a minor theme of the debate in the case. But, as I note below, had the Court taken a different course in Zivotofsky v. Clinton (Zivotofsky I), (3) these definitional concerns would have led to a different, perhaps much less controversial result.

In Zivotofsky I, the Court ruled 8-1 that the D.C. Circuit erred in dismissing the case as a political question. To the Court, the case addressed a justiciable issue: whether section 214(d) created a statutory right to have "Israel" noted on one's passport. Therefore, it was compelled to address whether that right could be abrogated by an executive decision concerning foreign affairs. This in turn forced the Court to revisit its prior decisions concerning the scope and definition of the president's power to conduct foreign affairs in particular and his power to act and restrict rights with or without the support of Congress more generally.

In Zivotofsky II, the Court debated the scope and definition of executive authority and the implications of dicta in two well-known precedents: United States v. Curtiss-Wright (in which Justice Sutherland set forth the "sole organ" vision of executive power in foreign affairs) and Youngstown v. Sawyer (where Justice Jackson set forth his tripartite taxonomy of presidential power with and without the clear support of Congress). (4)

Insofar as Zivotofsky II addressed whether section 214's requirement to add "Israel" to passports essentially forced the president to recognize Israel and therefore encumbered the executive's power to recognize nations, the Court's discussion was limited to only two possible outcomes. To the extent that it regarded the power to recognize nations as exclusive, Congress overstepped its bounds. To the extent that it is shared, Zivotofsky challenged the Court to clarify the conflict between Sutherland's dicta in Curtiss-Wright and Jackson's in Youngstown.

Much of the scholarly analysis addresses whether Zivotofsky II expanded or restricted executive authority in foreign affairs. (5) I argue that the implications of the case in this regard are much less ominous. The majority rejects the broad vision of power set forth in Curtiss-Wright and maintains that Zivotofsky II addresses only the scope of the recognition power: "the power to recognize or decline to recognize a foreign state and its territorial boundaries resides in the President alone." (6) All of this, said the Court, "underscores that Congress has an important role in other aspects of foreign policy, and the president may be bound by any number of laws Congress enacts." (7) So, while the recognition power may be exclusively executive, the rest of foreign relations power is shared. …

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