In an insightful new essay in The Yale Law Journal Forum, Prof. Laurence Tribe argues that separation-of-powers doctrinal analysis over the last six-plus decades has been limited by the elegant but incomplete tripartite framework set forth in Justice Robert Jackson's concurrence in The Steel Seizure Case. Recall that Jackson distinguished three categories of cases: (1) The president has maximum power when Congress expressly authorizes presidential action, thereby adding its delegated powers to the inherent powers of the president; (2) when Congress is silent, the president can only exercise his own inherent powers, although there is, in Jackson's phrase, "a zone of twilight" in which "congressional inertia, indifference or quiescence" can enhance presidential power; and (3) the president's power is at "its lowest ebb" when the president acts contrary to the "express or implied will of Congress." While noting the appeal of Jackson's "triptych," Tribe points to its limitations.
Tribe explains that the Jackson typology does not provide much guidance for the hardest cases--those in which Congress has provided little in the way of concrete guidance. In such (zone 2) cases, saying that the president's power is in a middle range is restating the problem, not solving it. Moreover, as Tribe notes, by suggesting that the will of Congress can be inferred from actions in Congress short of the actual enactment of legislation, the Jackson zone 2 analysis threatens to circumvent the Article I, Sec. 7 lawmaking process. (A similar argument has also been advanced as a ground for textualism in statutory interpretation, most forcefully by Prof. John Manning.)
Tribe argues further that congressional silence and inexactitude may be the least of a president's worries. He approvingly cites the Buchanan/Dorf analysis of a potential debt-ceiling trilemma* as an especially acute example of this sort of problem: in a debt-celing crisis, Congress will have given the president mutually inconsistent instructions. But Tribe thinks that the same problem (albeit in less stark form) is present more frequently than we might realize. He writes: "Congress’s instructions—even when embodied in clearly stated enactments—frequently bear little relation to the facts on the ground and may indeed be internally inconsistent."
Tribe also points to what he calls the missing dimensions of Jackson's Steel Seizure framework. Where it is unclear what Congress has or has not authorized presidential policy, Tribe argues, the courts should look to the other two great principles of the Constitution besides separation of powers: federalism and individual rights. The inquiry into whether congressional silence should be treated as implicit acquiescence in or opposition to presidential action would, under Tribe's proposal, be informed by a kind of presumption in favor of preserving the sovereign prerogatives of the states and protecting the rights of individuals.
Tribe gives a number of illustrations of cases in which either federalism or individual rights should have acted as a thumb on the scale either for or against the exercise of presidential power. The essay is short and rewards reading, so I won't go into each. I will say that I am not entirely persuaded by his last example, drawn from the case of Zivotofksy v. Kerry (Zivotofsky II). There, the SCOTUS held that a federal statute permitting U.S. citizens born in Jerusalem to list "Jerusalem, Israel" as their birthplace on their passports infringed the president's power to recognize foreign sovereigns in light of the consistent executive policy of treating the status of Jerusalem as subject to international negotiations. Tribe expresses skepticism about the ruling on its own merits and also adds that the Court failed to consider the individual interests of the petitioner, Menachem Zivotofsky, and his parents.
Tribe does not say that Zivotofsky or anyone else has a free speech right to express the view that Israel is sovereign over Jerusalem on his passport. Nor would would such an argument be at all persuasive. If specialty license plates are government speech (as the Court held last year in the Walker case), then surely passports are government speech.
Tribe nonetheless finds that Zivotofsky had a due process right to have the administration consider his interest in expressing his and his family's views on his passport, because Congress created an entitlement to do so. Here is how he characterizes the interest:
Just as the Due Process Clause limited President Truman’s power to seize private property in Youngstown, so too the Clause should have given at least provisional protection to Zivotofsky’s “liberty” entitlement that had been granted by Congress through a specific statutory right to express, through an American passport, his family’s “conscientious belief that Jerusalem belongs to Israel.” Although Congress was under no constitutional obligation to grant the Zivotofskys that statutory entitlement to a facet of personal liberty, the Court should at least have considered whether the President had impermissibly conditioned the liberty entitlement on the family’s submission to the administration’s views about who was sovereign over East Jerusalem—views that the Zivotofskys sought, partly on religious grounds, to contradict.Note that Tribe does not exactly say that Zivotofsky had a procedural due process right. Instead, drawing on an important article he wrote over forty years ago, he describes the interest as sounding in "structural due process." Although I am generally sympathetic to the concept of structural due process, I confess to being unsure about how it aids Zivotofsky. Tribe appears to be saying that neither the executive branch nor the Court paid adequate attention to Zivotofsky's congressionally recognized entitlement. With respect to the executive, he states: "In Zivotofsky II, the Executive justified its decision to disregard the family’s [statutorily authorized] request to list Israel as their son’s birthplace on the ground that the structural separation of powers precluded Congress from passing [the statute] in the first place."
That characterization strikes me as incomplete. The executive believed it had the power to deny Zivotofsky's request notwithstanding the statute because it thought the statute unconstitutional, but that's not why the executive denied the request. The request was denied because of a judgment by the executive that printing "Jerusalem, Israel" on U.S. passports would subtly undermine U.S. foreign policy with respect to Israel and Palestine. Maybe that judgment was wrong. Or maybe the Court was wrong in Zivotofsky II to think that the president's recognition power encompasses what appears in the place-of-birth field in a passport. But if the Court would have been right about that conclusion in the absence of any individual interests, it's not clear to me that the fact that Congress conferred a statutory right on people like Zivotofsky changes the calculus.
By analogy with procedural due process, structural due process could be said to require that the liberty-denying branch (here the executive) give a fair hearing and careful consideration to the reasons for denying liberty (here the statutorily-granted liberty to express a view about the status of Jerusalem on a passport), but it appears that the executive did give a fair hearing and careful consideration to the reasons. U.S. policy with respect to Jerusalem and the Israel/Palestine conflict is among the most intensely debated and scrutinized questions we have. Candidates for office take positions on, for example, whether to recognize Jerusalem as Israel's capital. There is no reason to think that the State Department and the president, in denying the request of Zivotofsky and similarly situated individuals, made the sort of arbitrary or thoughtless decision that would be analogous to a procedural due process violation.
That said, I agree with Prof. Tribe's other examples and also with the general lesson he draws from his consideration of Zivotofsky II: that the rights and interests of individuals ought to figure in the resolution of otherwise difficult zone 2 separation-of-powers cases. I likewise agree with his view that federalism should be added to the mix. His addition of these dimensions to Jackson's triptych is not only, as he puts it, a "friendly amendment" to the doctrine; it is a welcome amendment.
* Prof. Tribe's Yale Law Journal essay approves of the Buchanan/Dorf framing of a debt-ceiling crisis as a trilemma and describes our proposed solution that spending in excess of the debt ceiling in accordance with appropriations laws would be the least unconstitutional option. The essay does not say whether Tribe agrees with that solution, noting only that the courts have not ruled on the question. I had a preview of the essay in the form of Tribe's keynote address at a conference I attended in April (and blogged about here). In his oral remarks, Tribe said that he agreed with the Buchanan/Dorf view of the problem as a trilemma, but that he was not persuaded by our solution. I would be delighted to learn that we had persuaded him of our solution, but I doubt that his omission of his view about the best resolution to the trilemma reflects a change of mind. I suspect it simply reflects a desire to avoid a tangential discussion in the essay.