Zivotofsky v. Kerry (2015)

Summary

Zivotofsky v. Kerry involved the politically contentious question of which country is sovereign over the city of Jerusalem. Congress, expressing its support for Israel’s claim, enacted a law that instructed the State Department to designate the place of birth on a passport as “Jerusalem, Israel,” at the request of the parents of an American citizen born in Jerusalem. Both President George W. Bush and President Barack Obama argued that this statute unconstitutionally interfered with the President’s foreign affairs powers. The following suite of opinions reflects very different conceptions of “executive power” and the Constitution’s allocation of powers over foreign affairs.

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Excerpt: Majority Opinion, Justice Anthony Kennedy

Despite the importance of the recognition power in foreign relations, the Constitution does not use the term “recognition,” either in Article II or elsewhere. The Secretary [of State] asserts that the President exercises the recognition power based on the Reception Clause, which directs that the President “shall receive Ambassadors and other public Ministers.” . . . This in fact occurred early in the Nation’s history when President Washington recognized the French Revolutionary Government by receiving its ambassador. As a result, the Reception Clause provides support, although not the sole authority, for the President’s power to recognize other nations. . . .

The text and structure of the Constitution grant the President the power to recognize foreign nations and governments. The question then becomes whether that power is exclusive. The various ways in which the President may unilaterally effect recognition—and the lack of any similar power vested in Congress—suggest that it is. So, too, do functional considerations. Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These assurances cannot be equivocal.

Recognition is a topic on which the Nation must “‘speak ... with one voice.’” That voice must be the President’s. Between the two political branches, only the Executive has the characteristic of unity at all times. And with unity comes the ability to exercise, to a greater degree, “[d]ecision, activity, secrecy, and dispatch.” The Federalist No. 70, p. 424 (A. Hamilton). The President is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition. . . .

It remains true, of course, that many decisions affecting foreign relations—including decisions that may determine the course of our relations with recognized countries—require congressional action. Congress may “regulate Commerce with foreign Nations,” “establish an uniform Rule of Naturalization,” “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” “declare War,” “grant Letters of Marque and Reprisal,” and “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const., Art. I, § 8. In addition, the President cannot make a treaty or appoint an ambassador without the approval of the Senate. Art. II, § 2, cl. 2. The President, furthermore, could not build an American Embassy abroad without congressional appropriation of the necessary funds. Art. I, § 8, cl. 1. Under basic separation-of-powers principles, it is for the Congress to enact the laws, including “all Laws which shall be necessary and proper for carrying into Execution” the powers of the Federal Government. § 8, cl. 18.

In foreign affairs, as in the domestic realm, the Constitution “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Although the President alone effects the formal act of recognition, Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself. If Congress disagrees with the President’s recognition policy, there may be consequences. . . . That said, judicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations. . . .

Excerpt: Concurrence (in part) and Dissent (in part), Justice Clarence Thomas

Our Constitution allocates the powers of the Federal Government over foreign affairs in two ways. First, it expressly identifies certain foreign affairs powers and vests them in particular branches, either individually or jointly. Second, it vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II’s Vesting Clause.

Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, ignores that constitutional allocation of power insofar as it directs the President, contrary to his wishes, to list “Israel” as the place of birth of Jerusalem-born citizens on their passports. The President has long regulated passports under his residual foreign affairs power, and this portion of § 214(d) does not fall within any of Congress’ enumerated powers. . . .

The Constitution specifies a number of foreign affairs powers and divides them between the political branches. . . . These specific allocations, however, cannot account for the entirety of the foreign affairs powers exercised by the Federal Government. Neither of the political branches is expressly authorized, for instance, to communicate with foreign ministers, to issue passports, or to repel sudden attacks. Yet the President has engaged in such conduct, with the support of Congress, since the earliest days of the Republic. . . .

Justice Scalia would locate Congress’ power to enact the passport directive of § 214(d) in Congress’ power under the Necessary and Proper Clause to bring into effect its enumerated power over naturalization. . . . [He] disapproves of my “assertion of broad, unenumerated ‘residual powers’ in the President” . . . . In the end, Justice Scalia characterizes my interpretation of the executive power, the naturalization power, and the Necessary and Proper Clause as producing “a presidency more reminiscent of George III than George Washington.” But . . . his decision about the Constitution’s resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America. . . .

Excerpt: Dissent, Chief Justice John Roberts

Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs. We have instead stressed that the President’s power reaches “its lowest ebb” when he contravenes the express will of Congress, “for what is at stake is the equilibrium established by our constitutional system.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–638 (1952) (Jackson, J., concurring). . . . For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs. . . .

[A]lthough the President has authority over recognition, I am not convinced that the Constitution provides the “conclusive and preclusive” power required to justify defiance of an express legislative mandate. . . .

Excerpt: Dissent, Justice Antonin Scalia

Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs. The royal prerogative included the “sole power of sending ambassadors to foreign states, and receiving them at home,” the sole authority to “make treaties, leagues, and alliances with foreign states and princes,” “the sole prerogative of making war and peace,” and the “sole power of raising and regulating fleets and armies.” The People of the United States had other ideas when they organized our Government. They considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.

The People therefore adopted a Constitution that divides responsibility for the Nation’s foreign concerns between the legislative and executive departments. The Constitution gave the President the “executive Power,” authority to send and responsibility to receive ambassadors, power to make treaties, and command of the Army and Navy—though they qualified some of these powers by requiring consent of the Senate. At the same time, they gave Congress powers over war, foreign commerce, naturalization, and more. “Fully eleven of the powers that Article I, § 8 grants Congress deal in some way with foreign affairs.”

This case arises out of a dispute between the Executive and Legislative Branches about whether the United States should treat Jerusalem as a part of Israel. The Constitution contemplates that the political branches will make policy about the territorial claims of foreign nations the same way they make policy about other international matters: The President will exercise his powers on the basis of his views, Congress its powers on the basis of its views. That is just what has happened here. . . .

The naturalization power . . . enables Congress to furnish the people it makes citizens with papers verifying their citizenship . . . . As the Necessary and Proper Clause confirms, every congressional power “carries with it all those incidental powers which are necessary to its complete and effectual execution.” Even on a miserly understanding of Congress’s incidental authority, Congress may make grants of citizenship “effectual” by providing for the issuance of certificates authenticating them. . . .

In the end, the Court’s decision . . . comes down to “functional considerations”—principally the Court’s perception that the Nation “must speak with one voice” about the status of Jerusalem. . . . Functionalism of the sort the Court practices today will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs. . . .

[Justice Thomas’s] stingy interpretation of the enumerated powers forgets that the Constitution does not “partake of the prolixity of a legal code,” that “only its great outlines [are] marked, its important objects designated, and the minor ingredients which compose those objects [left to] be deduced from the nature of the objects themselves.” McCulloch [v. Maryland] ... , 4 Wheat., at 407. It forgets, in other words, “that it is a constitution we are expounding.” . . .

It turns the Constitution upside-down to suggest that in areas of shared authority, it is the executive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President's powers, Art. I, § 8, cl. 18, but the President must “take Care” that Congress’s legislation “be faithfully executed,” Art. II, § 3. . . . [T]he concurrence’s approach . . . produces a presidency more reminiscent of George III than George Washington. . . .

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