A Not-So-Solomonic Decision

Just as the heat of a Middle Eastern desert may so refract light as to distort a traveler’s perception of reality, so, too, may human legal judgment be distorted by the superheated political and media environment surrounding all questions touching on Israel.

Zivotofsky v. Kerry, the Supreme Court’s 5-3-1 decision invalidating Section 214 of the FY2003 Foreign Relations Authorization Act, illustrates the point. Section 214 purported to require the State Department to honor requests by U.S. citizens born in Jerusalem to list “Israel” on their passports as their place of birth. Going back to the Truman Administration, however, the U.S. Government has never recognized anyone’s legal sovereignty over Jerusalem. It has thus been State Department policy to list “Jerusalem” as the birthplace of any U.S. citizen born in that city.

In Zivotofsky, five Justices determined that the Constitution vests the president with sole authority – authority beyond Congress’s power to interfere – to recognize that a particular regime is legitimately the government of a state. They further held that Section 214 impermissibly invades the president’s authority. Congress may not insist that the president’s agent, the Secretary of State, publish a statement on individual passports that contradicts the president’s recognition decisions. Key to the majority’s conclusion is its insistence that “[r]ecognition is a topic on which the Nation must ‘speak…with one voice.’”

Reacting as a citizen, I, too, would wish the elected branches of our government to join in a consistent position on Jerusalem policy. Specifically, I would wish their voice to affirm the view of every president since the founding of Israel that the status of Jerusalem must be resolved by negotiations among the principal parties involved.

That wish, however, does not make Congress’s regulation of passports unconstitutional. Even if the majority were correct – which is questionable – whether the authority to recognize other governments is not merely presidential, but exclusively so, it is difficult to see how Section 214 implicates it in any legal sense. International law does not infer recognition from birthplace designations on passports. Likewise, Justice Scalia’s dissent points out clear examples of longstanding legislation no more at odds than is Section 214 with U.S recognition policy. For example, Congress permits Taiwan to sue and be sued as an independent party, notwithstanding our recognition of the People’s Republic of China. Congress likewise allowed the public records of Vatican City to be admissible in federal court long before we recognized the Vatican as a state.

There is, to be sure, something weird about four of the five opinions in Zivotovsky. Perhaps this is where too much heat distorts perception, or at least analysis. (Justice Breyer’s short opinion reiterating his preference for treating the case as a nonjusticiable political question is not weird and, now that we see the Court’s handiwork, may well seem the wisest.)

The majority opinion is marked by an odd inner tension. For the first time in the nation’s history, it establishes a wholly implicit foreign affairs power as both inherent in the presidency and beyond Congress’s power to regulate. At the same time, it refuses to base its conclusion on any broad reading of the “executive power” Vesting Clause in Article II, resting instead on the president’s specifically enumerated foreign affairs powers, such as the power to receive ambassadors. The majority takes the occasion of this remarkable legitimation of executive power to eloquently (and properly) reject any expansive reading of the 1936 decision in U.S. v. Curtiss-Wright Export Corp., which the executive branch routinely cites as the basis for a free-floating undefined presidential power over anything touching on foreign affairs.

For his part, Justice Thomas offers in partial concurrence his own weird brew of idiosyncratic constitutional interpretations. On one hand, he agrees with the majority that Section 214 is unconstitutional, but only because he alone on the Court thinks Congress lacks any authority to regulate passports. At the same time, he embraces a broad theory of residual foreign affairs powers conferred on the president by the vesting of “executive power.” Then, and remarkably, he finds that Congress does have authority to insist on the listing of Israel not on passports, but on a separate document – the consular birth report – because “the consular report…is historically associated with naturalization, not foreign affairs.” (The majority treats the consular report issue as having been waived in the court below.) The “historically associated with” test is cut from whole cloth.

Chief Justice Roberts pens a brief dissent merely, in his words, to underscore the uniqueness of the majority’s opinion. To be fair, it is weird only in that Justice Scalia does not join it. It seems to reach conclusions identical to Justice Scalia’s, but only with fewer words and less snark.

Justice Scalia’s opinion is weird because he would have seemed an unlikely author for such a clear-eyed statement of congressional authority. For example, he rejects Justice Thomas’s view that passports have a “historical pedigree uniquely associated with the President.” Scalia points out that, “until Congress restricted the issuance of passports to the State Department in 1856, passports were also issued by governors, mayors, and even . . . notaries public.” As it happens, the federal government also relied on state officers in the early decades to collect federal taxes. Yet, in deciding the 1997 case, Printz v. United States, this same Justice Scalia thought the history irrelevant to the constitutionality of having local law enforcement officers conduct federal background checks for gun purchases. Having non-federal officials perform such checks would, in Scalia’s view, undermine a constitutionally prescribed presidential control over all federal law execution.

The majority may think its opinion a narrow one calculated to avoid mischief in navigating U.S. relations with Israel. But its narrowness is a matter of speculation. Imagine, if you will, the following hypothetical (as far as I know) conversation between President Obama and Nechirvan Barzani, prime minister of the Kurdistan Regional Government in Iraq. Prime Minister Barzani declares: “Look, we’re the most stable, responsible U.S. ally in the Muslim Middle East. It is time that you recognize Kurdistan as an independent state.” President Obama replies: “I’d love to, but that’s not a decision I can undertake unilaterally. Given the delicacy of Iraq’s situation, I really cannot proceed without the agreement of our legislature, the Congress.” Mr. Barzani exclaims: “Hah! Read your Supreme Court’s decision in Zivotofsky v. Kerry. The decision to recognize Kurdistan is exclusively presidential! Congress is not allowed constitutionally even to contradict you.”

President Obama’s likely response would be, “Oy!”

Peter Shane

Peter Shane teaches constitutional law at the Ohio State University's Moritz College of Law and is the author of Madison's Nightmare: How Executive Power Threatens American Democracy (University of Chicago Press 2009).