Summary of the Court’s Opinion This Morning in Zivotofsky v. Kerry

Sean Mirski
Monday, June 8, 2015, 8:10 PM

In his famous Youngstown concurrence, Justice Jackson began by reflecting that:

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In his famous Youngstown concurrence, Justice Jackson began by reflecting that:

[a] judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. . . . A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.

Over sixty years later, those words still ring true. This morning, however, the U.S. Supreme Court engaged deeply in Zivotofsky v. Kerry with one of the “largest questions” in foreign relations law, and—perhaps surprisingly—provided some illuminating answers. As Jack noted in a post earlier today, the Court deals only rarely with separation-of-powers issues in Jackson Category #3—when Congress and the President clash expressly—and until today, it had never sided with the President in a foreign relations case in this category. More importantly, Zivotofsky also sets forth an analytic approach that may help courts and lawyers determine in the future what types of executive power are “exclusive.”

The Facts

The issue in Zivotofsky was deceptively narrow at first glance. In 2002, Congress passed the Foreign Relations Authorization Act for FY 2003. In Section 214(d), the Act states that “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

But this provision presented a problem for the executive branch. Since President Truman’s recognition of Israel in 1948, every President has refused to recognize Israel’s (or any other country’s) sovereignty over Jerusalem. Section 214(d) seemed to clash with this policy insofar as it allowed U.S. citizens born in Jerusalem to identify themselves—on a government document—as being born in Israel. (Previously, the State Department had simply put “Jerusalem” as the place of birth without specifying a particular country.)

With these concerns in mind, President Bush issued a signing statement arguing that Section 214(d) interfered impermissibly “with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.” President Obama staked out a similar position.

As a result, the State Department refused to honor the statutory right extended by Section 214(d). Challenging this position, Menachem Binyamin Zivotofsky sued the government in order to enforce the provision and have “Israel” recorded as his place of birth in the passport. After a trip up to the Supreme Court in 2012 (where the Court decided that the case did not present a political question), Zivotofsky reappeared on the Court’s docket this year.

The Majority Opinion

Writing for himself and four others, Justice Kennedy found that, first, “the President has the exclusive power to grant formal recognition to a foreign sovereign,” and, second, that Congress cannot “command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition.”

On the first question, the Court opened by summarizing Justice Jackson’s Youngstown framework:

The framework divides exercises of Presidential power into three categories: First, when “the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Second, “in absence of either a congressional grant or denial of authority” there is a “zone of twilight in which he and Congress may have concurrent authority,” and where “congressional inertia, indifference or quiescence may” invite the exercise of executive power. Finally, when “the President takes measures incompatible with the expressed or implied will of Congress . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To succeed in this third category, the President’s asserted power must be both “exclusive” and “conclusive” on the issue.

In this case, the Executive admitted that it found itself in the third category, but argued that it was relying upon an exclusive executive power of recognition. The Court agreed after examining “the Constitution’s text and structure, as well as precedent and history bearing on the question.”

First, Justice Kennedy laid out the doctrine governing the act of recognition under international law, which may involve (among other issues) “the determination of a state’s territorial bounds.” Next, the majority argued that the Receptions Clause of Article II—which states that the President “shall receive Ambassadors and other public ministers”—would have been “understood to acknowledge his power to recognize other nations” at the time of the founding.

This conclusion was supported by the President’s other Article II powers, particularly the power to make treaties and appoint ambassadors. The Court concluded that the President’s participation in treatymaking and ambassador appointments showed how the Constitution “assigns the President means to effect recognition on his own initiative. Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.”

Justice Kennedy found additional support for an exclusive power of recognition in “functional considerations.” He argued that “[r]ecognition is a topic on which the Nation must ‘speak . . . with one voice,’” and that the “voice must be the President’s” because “only the Executive has the characteristic of unity at all times.”

Precedent and history supported this holding. Although the Court’s past cases were equivocal, “a fair reading . . . shows that the President’s role in the recognition process is both central and exclusive.” And although the “history is not all on one side” either, “on balance it provides strong support for the conclusion that the recognition power is the President’s alone.”

After holding that the President has the exclusive power of recognition, the majority spent the final four pages of its opinion on the second question presented: “whether §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem.” Although Section 214(d) did not threaten to directly alter the Executive’s recognition policy, it “force[d] the President himself to contradict his earlier statement” on recognition. And “[i]f the power over recognition is to mean anything,” Justice Kennedy wrote, “it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s statements.” After all, “if Congress could alter the President’s statements on matters of recognition or force him to contradict them, Congress in effect would exercise the recognition power.”

Accordingly, the Court held, Section 214(d) was an unconstitutional interference with the President’s exclusive recognition power.

The Concurrences and Dissents

Four Justices wrote separately in Zivotofsky. Justice Breyer wrote briefly to reiterate his earlier view that the case presented a political question, but he explained that he would nevertheless join the Court’s opinion.

Justice Scalia’s Opinion – Joined by Chief Justice Roberts and Justice Alito, Justice Scalia authored the primary dissent. He began by establishing the Article I basis for Section 214(d). Contrary to Justice Thomas, Justice Scalia argued that Congress could pass Section 214(d) pursuant to its naturalization power.

Next, Justice Scalia argued that the Court need not have decided whether the recognition power was exclusive—a difficult question—because Section 214(d) does not concern recognition. Recognition is not just a policy announcement, he noted, but “a formal legal act with effects under international law.” But Section 214(d) does not carry any legal consequences on the international plane; it “does not encumber the Republic with any international obligations” and “leaves the Nation free (so far as international law is concerned) to change its mind in the future.” Instead, the provision merely accommodates the preference of some American citizens “about what our Government has to say about their identities.”

This accommodation may offer “symbolic [congressional] support for Israel’s territorial claim.” But that support alone is not enough to render Section 214(d) unconstitutional. For even if the President does have exclusive recognition power, he does not collaterally gain the “sole power to make all decisions relating to foreign disputes over sovereignty” (emphasis added). “Recognition is a type of legal act, not a type of statement,” Justice Scalia argued, and “[i]t is a leap worthy of the Mad Hatter to go from exclusive authority over making legal commitments about sovereignty to exclusive authority over making statements or issuing documents about national borders.”

In the end, Justice Scalia concluded, the majority’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.” This type of functionalism is dangerous, he wrote, not only because it lacks a constitutional basis, but also because it “will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs[,] . . . erod[ing] the structure of separated powers that the People established for the protection of their liberty.”

Chief Justice Roberts’s Opinion – In a separate dissent joined by Justice Alito, Chief Justice Roberts echoed Justice Scalia’s reasoning and “underscore[d] the stark nature of the Court’s error on a basic question of separation of powers.” He observed that “[t]oday’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.”

Chief Justice Roberts also criticized the Court’s support for its exclusive power holding, and argued that “even if the President does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition.” The majority tried to avoid this problem by suggesting that the recognition power includes the ancillary power of avoiding perceived contradictions, but this argument “proves far too much” for the Chief Justice. After all, “Congress could validly exercise its enumerated powers in countless ways that would create more severe perceived contradictions with Presidential recognition decisions than does §214(d).” To give only one example, if “the President recognized a particular country in opposition to Congress’s wishes, Congress could declare war or impose a trade embargo on that country. A neutral observer might well conclude that these legislative actions had, to put it mildly, created a perceived contradiction with the President’s recognition decision. And yet each of them would undoubtedly be constitutional.”

Justice Thomas’s Opinion – Justice Thomas concurred in the judgment in part and dissented in part. He agreed with Justice Scalia’s dissent that the “recognition power”—even if it was exclusive—was insufficient to decide the question presented. But he thought that Section 214(d)’s passport provisions were unconstitutional because they tried to direct the President’s “foreign affairs powers” without any constitutional authority.

Justice Thomas observed that the Constitution allocates certain foreign affairs powers expressly to either Congress or the President. “These specific allocations, however,” he wrote, “cannot account for the entirety of the foreign affairs powers exercised by the Federal Government.” To him, the Constitution prescribes these unenumerated powers to the President through the Article II Vesting Clause, which provides that “[t]he executive Power shall be vested in a President of the United States.” (Notably, that provision differs from the Article I Vesting Clause, which provides only that “[a]ll legislative Powers herein granted shall be vested in” Congress.) Justice Thomas argued that this textual interpretation was confirmed by the original understanding at the Founding, as well as by post-ratification history.

Turning to this case, Justice Thomas concluded that “[b]ecause the President has residual foreign affairs authority to regulate passports and because there appears to be no congressional power that justifies §214(d)’s application to passports, Zivotofsky’s challenge to the Executive’s designation of his place of birth on his passport must fail.” Historically, the President had repeatedly exercised his authority to issue passports. And on the other side of the ledger, Congress passed Section 214(d) without identifying any source of enumerated congressional power. Justice Thomas noted that “[t]he Constitution contains no Passport Clause, nor does it explicitly vest Congress with ‘plenary authority over passports.’” And any “passport power” was too attenuated from either interstate commerce or naturalization to be justified under those clauses, even with the added help of the Necessary and Proper Clause.

Finally, Justice Thomas distinguished Section 214(d)’s passport provisions from its provisions on the consular report of birth. Unlike the former, the latter has a primarily domestic purpose and thus does not implicate the President’s foreign relations powers. For that reason, too, it ties more closely into Congress’s enumerated power over naturalization. Accordingly, Justice Thomas would have held that “Section 214(d) can be constitutionally applied to consular reports of birth abroad, but not passports.” (The majority had asserted that “Zivotofsky waived any argument that his consular report of birth abroad should be treated differently than his passport,” and thus it did not “engage in a separate analysis of the validity of §214(d) as applied to consular reports of birth abroad.”)

Sean A. Mirski practices a combination of appellate and international law at Arnold & Porter in Washington, DC, with a focus on public international, national security and foreign relations law. He is also a Visiting Scholar at the Hoover Institution. He clerked for Justice Samuel A. Alito, Jr., on the United States Supreme Court, and for then-Judge Brett M. Kavanaugh on the United States Court of Appeals for the D.C. Circuit. He also served as Special Counsel to the General Counsel of the U.S. Department of Defense. He graduated magna cum laude from Harvard Law School, where he served as Supreme Court Chair for the Harvard Law Review.

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