Monday, June 08, 2015

Zivotofsky May Be Remembered as Limiting Exclusive Presidential Power

By Michael Dorf

Today's SCOTUS decision in Zivotofsky v Kerry should become a classic case in the sense that it should be (and I expect that it eventually will be) a consensus "principal case" in constitutional law casebooks for years to come. The various opinions are all interesting and fairly well-reasoned. Here, after a brief setup I'll offer a counter-intuitive hypothesis: Although the case invalidates an Act of Congress as interfering with an exclusive presidential power, it may be remembered over the long term as a limit on exclusive presidential power (i.e., vindicating congressional power over foreign affairs).

The case arises out of a conflict between the Executive and Congress. As Justice Kennedy recounts for the majority, since President Truman on behalf of the U.S. recognized the State of Israel, U.S. policy has not recognized any country or other entity as having sovereignty over Jerusalem, concerned that doing so would undermine the prospect (however limited) of peaceful resolution of conflicting claims to the city and the wider conflict. Accordingly, the State Dep't under the leadership of both Republican and Democratic Administrations has declined requests by U.S. citizens who were born in Jerusalem to have "Israel" (or for that matter, "Palestine," "Jordan," or any other state or quasi-state) stamped on their passports as place of birth. In 2002, Congress passed a law requiring the State Dep't to issue passports designating Israel as the place of birth of U.S. citizens born in Jerusalem if those citizens (or, as in this case involving a minor, the parents) so request.

Right off the bat, one wonders why President Bush signed the bill into law, given that he did not intend to alter U.S. policy with respect to Jerusalem. To be sure, he accompanied his signature with a signing statement to the effect that "if construed as mandatory rather than advisory," the law would be an unconstitutional interference with the President's power to recognize foreign states. The problem with that statement, however, is that there is no other way to construe the law than as mandatory, because it says the Secretary "shall" issue the passports describing Israel as the place of birth. Thus, the signing statement cannot be taken seriously--which raises the question why President Bush signed rather than vetoed the measure. The obvious answer is that it was Section 214(d) of a massive foreign policy bill that he may have believed was otherwise a good idea. Although one can argue that a president ought to veto a bill if he thinks any part of it is unconstitutional, that is often impractical in an age of omnibus legislation.

Now, onto today's opinions. Justice Kennedy wrote the majority for himself and the four most liberal members of the Court, although Justice Breyer also wrote a separate concurrence reiterating the position he took in 2012, that he thought the case presented a non-justiciable political question. Faced with the merits, however, Justice Breyer joined the majority in full.

Justice Kennedy's opinion is long and interesting, making much use of historical examples, some of which led to litigation and many of which did not. His basic argument goes like this: Article II directs the president to "receive Abassadors and other public Ministers." That duty translates into executive power to decide which, if any, foreign state or entity has sovereignty over external territory. (E.g., by receiving the ambassador from revolutionary France, President George Washington recognized the French Revolution.) Principles of effective conduct of foreign relations, as well as the weight of historical practice, make recognition an exclusive executive power. Designations of place of birth on passports are an exercise of the exclusive executive recognition power. Although Congress has many powers that implicate foreign affairs, it may not exercise them in such a way as to interfere with an exclusive presidential power. Because the statute does so interfere, it is unconstitutional.

Justice Thomas concurred in the judgment in part and dissented in part. He took a position on executive power that was at once narrower and broader than the majority's. It was narrower because, although agreeing with the majority that Congress could not dictate how the State Dep't designates place of birth on passports, he thought that, as applied to consular reports of birth for internal domestic purposes, Section 214(d) was a valid exercise of Congress's power over naturalization. The majority didn't exactly disagree with this argument, however, deeming the petitioner to have waived separate treatment for passports and consular reports.

Justice Thomas's view of executive power was broader than the majority's in a subtle way that may take on large significance in future cases. As noted above, the majority rooted the recognition power in the president's Article II duty to receive ambassadors. Justice Thomas discussed examples of the president receiving ambassadors but he had a different textual account of the source of the president's power. For him, the power is among the "residual" foreign affairs powers of the presidency.

Unlike Article I, which only vests in Congress those legislative powers "herein granted," Article II, in addition to specifically enumerating presidential powers and duties, vests "The executive Power" in the president. As a practical matter, this distinction is usually unimportant. Even if a legislative power is not expressly vested in Congress, it can often be inferred as necessary and proper to carrying out one or more of the enumerated powers. But one must at least go through the exercise. By contrast, a president has inherent powers with respect to foreign affairs simply in virtue of their being "executive" in nature. These powers are broader and potentially more exclusive of congressional action than the president's enumerated powers.

Thus, although Justice Thomas does not expressly invoke the Curtiss-Wright case, his opinion is much closer to the spirit of that case than is the majority's. Speaking for the Court in Curtiss-Wright, Justice Sutherland famously but problematically stated that the president is the "sole organ" of the United States in foreign affairs. Justice Thomas doesn't go that far, but he does not go out of his way to repudiate this broad view, and in light of his reliance on residual powers, arguably invokes Curtiss-Wright. By contrast, Justice Kennedy's Zivotofsky majority opinion expressly repudiates the Curtiss-Wright dicta in some powerful dicta of its own. He writes:
Curtiss Wright did not hold that the President is free from Congress’ lawmaking power in the field of international relations. The President does have a unique role in communicating with foreign governments, as then-Congressman John Marshall acknowledged. [Citation.] But whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law. In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. [Citations.] It is not for the President alone to determine the whole content of the Nation’s foreign policy.
Those who agree with the dissenters--Chief Justice Roberts, joined by Justice Alito, and Justice Scalia, joined by both CJ Roberts and Justice Alito--will no doubt argue that the repudiation of Curtiss-Wright rings hollow in Zivotofsky. After all, as the Chief notes in the opening line of his opinion, the ruling is the first ever to reject an Act of Congress regulating foreign affairs as unconstitutionally interfering with the president's exclusive powers.

Nonetheless, over the long run, I suspect that Zivotofsky will come to be seen as a relatively narrow ruling. Even Justice Jackson in Steel Seizure recognized that there could be cases in which an Act of Congress invalidly interferes with the president's exclusive powers. He described presidential power in case of such a conflict as at its "lowest ebb." He did not say truly exclusive presidential power is non-existent.

Indeed, if I am right, then just as Hamdi v. Rumsfeld is now routinely cited for Justice O'Connor's sweeping line that "a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens," even though the Hamdi Court allowed military detention of citizens, so too, Zivotofsky's repudiation of the broad language of Curtiss-Wright will come to overshadow the fact that the Court ends up invalidating an Act of Congress as unduly interfering with an exclusive presidential power.