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Guest Post: Zivotofsky v. Kerry

The Jerusalem passport case involves an important question of the separation of powers in the conduct of foreign affairs:  Is the President's power to recognize foreign states and governments an exclusive executive prerogative, or is that power subject to the legislative authority of Congress?

Section 214(d) of the 2003 Foreign Relations Authorization Act requires the State Department to honor the request of American citizens born in Jerusalem to have "Israel" listed as their place of birth on passports.  The Bush and Obama administrations have refused to comply with this statute, asserting that it unconstitutionally infringes on the President's recognition power.  The policy of every President since Harry Truman has been that the United States recognizes the State of Israel but does not recognize Israel's (or any other country's) sovereignty over Jerusalem, with that matter to be resolved through future negotiations.  To comply with the Executive's recognition policy, the State Department lists "Jerusalem," and not, for example "Israel," "Jordan" or "Palestine," as the place of birth of American citizens born in Jerusalem.

In Zivotofsky I, the Supreme Court held that an adjudication of the merits was not barred by the political question doctrine.  On remand, the D.C. Circuit held that the President's recognition power is exclusive and that the Jerusalem passport statute is unconstitutional.  The case is now back in the Supreme Court.

Although the Supreme Court has stated a number of times that the President's recognition power is exclusive (and in a few cases that it is a shared power with Congress), those cases involved the question of whether the courts could question an executive recognition decision.  None involved a conflict with a statute of Congress.  Zivotofsky II is in Justice Jackson's third category, where presidential power is at its "lowest ebb" and can be sustained only through a persuasive argument of exclusivity.

In a recent article (see here), I argued that such a persuasive argument could not be made.

The first problem with the exclusivity argument is, as I pointed out in an earlier article (see here) that it is not supported by the text or original understanding of the Constitution.  An executive recognition power is not explicitly vested in the Constitution. It may be plausibly implied from the Receive Ambassadors Clause in Art. II, § 3 because receiving foreign diplomats is evidence that a nation or government has been recognized.  But an exclusive executive power cannot be implied from this clause because there are other clauses in the Constitution from which a recognition power can also be implied, some vesting shared power in the President and Senate (the treaty and diplomatic appointments powers) and others vesting power in Congress (such as the war and foreign commerce powers).

The original understanding of the recognition power is non-existent.  Hamilton dismissed the Receive Ambassadors Clause in The Federalist as a ministerial duty of the President as head of state.  The recognition power was not discussed in the Constitutional Convention or in the ratification debates, even though the Anti-Federalists attacked, and the Federalists defended, every perceived executive power. The most likely explanation for this silence is that the founders cared very much that the United States should be recognized by the European powers.  But the idea that the United States would "recognize" the existing European nations was a non-sequitur.

The D.C. Circuit agreed that neither the text nor original understanding was "helpful" is resolving this separation of powers issue.  Instead, the court placed considerable reliance on post-ratification history.

The court adopted the Justice Department's post-ratification historical narrative that (a) recognition has consistently been an executive function; (b) Congress has never exercised the recognition power; and (c) when members of Congress (or one House) challenged a presidential recognition decision, Congress as a body always backed down, acknowledging that the Executive's power was plenary.

The first part of his narrative is substantially correct.  Beginning with the Washington administration, Presidents have made a huge number of unilateral decisions to recognize or not to recognize new nations and governments without any opposition from Congress.  This executive practice and congressional acquiescence can place a "gloss" on the Constitution and establish an implied power in the President that fits within Jackson's second category (as per the similar historical practice of Presidents settling claims with foreign governments).  However, my recent article (see here) and two earlier articles (see here and here) show that the second and third parts of the Justice Department's narrative, which purport to establish that Congress has consistently acknowledged a plenary executive power, are incorrect.

Congress has exercised the recognition power through statutory enactments.  In 1800, during the Quasi-War with France, Congress declared that Santo Domingo (now the Dominican Republic) was a territory of France and not Spain.  In the wake of the Haitians' successful war of independence, Congress in 1806 instituted a trade embargo that renounced Haitian independence and declared that portion of Hispaniola to be a colony of France.  In 1862, Congress recognized the independence of Haiti and Liberia.  And in 1898, Congress recognized that Cuba was independent of Spanish or other colonial control.  More recently, in 1979 Congress responded to President Carter's recognition of the People's Republic of China by passing the Taiwan Relations Act.  That law is contrary to the key policy of "strategic ambiguity" over Taiwanese sovereignty in Carter's recognition decision because the TRA treats the governing authorities on Taiwan as having sovereign legislative power; mandates that the United States will help Taiwan defend itself against the PRC; and establishes a form of government-to-government diplomatic relations.  And in 1995, Congress passed the Taiwan passport statute, which was the model for the Jerusalem statute.  That law, which administrations have enforced, provides that the State Department must, upon request, record the place of birth of American citizens born in Taiwan as "Taiwan," and not "China" or "The People's Republic of China."

The Justice Department also overstated executive and understated legislative power in important incidents such as Washington's reception of Genet, the dispute between Clay and Monroe over recognizing the Latin American republics, Jackson's yielding the initiative over the recognition of Texas to Congress, and the congressional "non-recognition" of Maximilian.  When examined in detail, these incidents do not establish presidential claims to plenary power or congressional acknowledgement of such power in the Executive.

The post-ratification history may not conclusively disprove the Executive's claim to plenary power.  The number of incidents is small in relation to the number of times that presidential recognition decisions went unchallenged, and some of those incidents are complex and subject to differing interpretations.  But finding an implied plenary recognition power in the President requires a heavy burden of justification because it defies our system of checks and balances - the constitutional "equilibrium" to which Jackson referred - and post-ratification history does not meet that burden.

Article II is often described as a skeletal framework for the future development of the presidency, but one principle is beyond dispute: the founders did not want the President to have the powers of a king. Thus, almost every executive power is subject to a check by Congress as a whole or by the Senate (the pardon power is a singular exception).  And this principle applies with even greater strength in the case of implied executive powers.  Thus, notwithstanding the long history of unchallenged executive claims-settlement agreements, there is no doubt that Congress could modify or nullify those agreements under the foreign commerce power.  The recognition power should be treated the same - historical practice has confirmed the President's power to recognize foreign nations and governments, but that power is subject to congressional control and revision.

Via Just Security

Written by Robert Reinstein

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