When President George W. Bush signed the Foreign Relations Authorization Act in the fall of 2002, it produced a mild diplomatic crisis. The Act put Congress on record as considering Jerusalem the capital of Israel. Both Palestinians and Israelis claim Jerusalem as their capital; it’s an axiom of Middle East politics (and the position of successive U.S. administrations) that the city’s status must be settled by negotiations, and anything that seems to prejudge the issue is regional dynamite. The legislation that Bush approved , among other things, required the State Department to offer U.S. citizens born in Jerusalem the choice of listing “Israel” on their U.S. birth record (a document proving citizenship) and U.S. passport under “place of birth.”
Yasir Arafat, the chairman of the Palestinian Authority, called the law a “catastrophe.” The secretary-general of the Arab League, the government of Saudi Arabia, and the foreign minister of Russia were only slightly less harsh. Hamas called for mass demonstrations in the Gaza Strip. In general, it was a shaky moment for U.S. diplomacy.
In signing the law, Bush announced that he would not abide by the passport provision; and indeed, neither his administration nor that of Barack Obama has followed the birthplace requirement. Both have argued that only the president can recognize, even implicitly, that Jerusalem is part of Israel.
On Monday, the U.S. Supreme Court decided 5-4 (or maybe 5 ½-3 ½) that the State Department does not have to follow the passport requirement. The parents of Menachem Zivotofsky, an American born in Jerusalem in 2002, asked for “Israel” to be listed on his passport; consular officials refused. The family has litigated the issue through two full rounds of argument in front of the D.C. Circuit and the Supreme Court. The Court, in an opinion by Justice Anthony Kennedy, rejected their quest because “[r]ecognition [of foreign governments] is a topic on which the Nation must ‘speak with one voice.’” Kennedy wrote that “[t]hat voice must be the President’s.”
In Zivotofsky, for the first time, the Court has squarely held that the power to recognize foreign governments is exclusive to the president. The president has sole authority to determine what countries to conduct relations with, which competing government is legitimate, and which territorial claims to accede to.
The Zivotofsky family had argued that the “place of birth” notation was actually just a way of identifying the passport holder. Kennedy, however, said that the requirement was “a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State.” If the president was required to obey the mandate, it “would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”
It’s a pretty big win for the executive branch. Kennedy disguised the blow with soothing words about Congress’s major role in foreign relations. Congress, he noted, can still refuse to confirm an ambassador to a regime it does not recognize, impose trade restrictions, or reject treaties proposed by the president. In particular, Kennedy refused to endorse the loose language of a 1936 case, United States v. Curtiss-Wright Export Corporation, which had (more or less apropos of nothing) proclaimed the president “the sole organ of the federal government in the field of international relations.” The government had used the language of Curtiss-Wright in its briefs, but its main contention had been that the passport statute involved recognition, and that recognition was an exclusive presidential power. On that point, Kennedy’s opinion gave the administration almost everything it could have hoped for.
Justice Stephen Breyer concurred, but wrote separately that the Court had no business deciding whether the power was exclusive. “I continue to believe that this case presents a political question inappropriate for judicial resolution,” he wrote.
Justice Clarence Thomas, in a remarkably finicky concurrence and dissent, agreed that the passport requirement is not constitutional, but added that the “Israel” requirement on the Consular Report of Birth Abroad is fine (hence the novel 5 ½-3 ½ score).
Thomas argued that the birthplace notation on a passport does not actually involve recognition; instead, he maintained that the statute violated the president’s “residual foreign affairs power.” Executive thinkers dating back to Alexander Hamilton have ascribed this general mass of powers to the Constitution’s statement that “the executive power shall be vested” in the president alone. The Bush administration loved the “vesting clause”; Obama has been a bit more subdued in his claims of “residual power,” locating his actions in other areas of the text.
Chief Justice John Roberts, in a short dissent, charged that the Court is “for the first time in our history … allowing the President to defy an Act of Congress in the field of foreign affairs.” The principal dissent, by Justice Antonin Scalia, proclaimed that the birthplace requirement “does not require the Secretary to make a formal declaration about Israel’s sovereignty over Jerusalem.” Instead, Scalia argued, it is a perfectly proper exercise of Congress’s power over citizenship and naturalization. And if it complicates U.S. foreign policy, the Framers understood that. Under their scheme, he wrote, “The President will exercise his powers on the basis of his views, Congress its powers on the basis of its views,” let the chips fall where they may.
Scalia ended with what is, to him, a stinging accusation: pragmatism. “[T]he Court’s decision does not rest on text or history or precedent. It instead comes down to ‘functional considerations’—principally the Court’s perception that the Nation ‘must speak with one voice’ about the status of Jerusalem,” he wrote.
The problem with “functionalism,” Scalia wrote, is that it will “systematically favor the unitary President over the plural Congress in disputes involving foreign affairs.” This may make U.S. foreign policy “more effective,” indeed “perhaps as effective as that of a monarchy.” But it will also “erode the structure of separated powers that the People established for the protection of their liberty.”
Solicitor General Donald Verrilli, arguing before the Court, had cited the diplomatic controversy surrounding the Foreign Relations Authorization Act in 2002, which hinted that the passport requirement, if enforced, might be capable of further mischief. The majority opinion paid no attention to it. The opinion did briefly note that “Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues in current international affairs.” Even that limited recognition of the world we actually live in, Scalia’s dissent argued, is a grave blunder.