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At first glance, yesterday’s Supreme Court decision in Zivotofsky v. Kerry — holding that Congress couldn’t force the executive branch to recognize Jerusalem as part of Israel on a passport — seems destined to end up as but a footnote in most constitutional law books. It only decides whether the president or Congress controls the content of U.S. passports. But because Zivotofsky involves the treatment of Jerusalem, it adds to the president’s foreign affairs arsenal and could affect the struggle over U.S. Middle East policy, such as an Iranian nuclear deal.
Zivotofsky upholds the executive’s right to control passports. According to the Court’s decision, the State Department, rather than Congress, decides whether to record the birthplace of a U.S. citizen born in Jerusalem as “Jerusalem,” rather than “Israel.” All of the justices agree that the president holds a monopoly on the recognition of foreign governments, which stems from his exclusive constitutional authority to “receive Ambassadors” and has existed since President Washington’s 1793 proclamation of neutrality during the French Revolution. Congress, on the other hand, has the authority to control immigration, the borders, and international travel. Justice Kennedy, who wrote the majority opinion on behalf of Justices Ginsburg, Breyer, Kagan, and Sotomayor, used an ill-conceived and undefined balancing test to conclude that Congress could not use these powers to contradict the president’s position on Israel’s territorial boundaries. A law using passports to contradict the president’s decision to recognize Israel “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 is refreshing to see Democratic-appointed Justices, some of whom criticized President Bush’s right to manage the War on Terror, take a stand in favor of the executive’s authority in foreign affairs (though don’t hold your breath for their embrace of a President Walker’s use of executive power). Their majority opinion, however, skims over the most critical point by mistaking the power over passports as belonging to Congress, rather than the executive. But even if Congress enjoys this power, Justice Kennedy fails to explain why it undermines the executive’s recognition of Israel. His reason — that Congress cannot force the Secretary of State to contradict the president — makes little sense. Regardless of the passport’s listing of birthplace, U.S. recognition of Israel remains unchanged. President Obama can still maintain his frosty relations with Benjamin Netanyahu and even threaten to support Arab and European persecution of Israel at the United Nations, all the while claiming to be Israel’s best friend before domestic audiences. Although Congress’s passport law may reveal that the Republican legislature is far more supportive of Israel than the president, this will only come as news to those who missed Netanyahu’s March address before Congress.
Kennedy’s mushy reasoning provoked an acerbic dissent from Justice Scalia (on behalf of Chief Justice Roberts and Justice Alito), which, unfortunately, runs counter to a career defending presidential power. In Morrison v. Olson (1988), Justice Scalia authored a foundational dissent against the constitutionality of the independent counsel law. Echoing Alexander Hamilton’s defense of the Neutrality Proclamation, Scalia maintained that all of the executive power of the federal government was vested in the president, minus only the clear exceptions made in the Constitution (as with treaties and appointments, which are shared with the Senate). Congress could not interfere with core functions such as law enforcement by shielding prosecutors from presidential removal. Building on Scalia’s logic, Chief Justice Roberts recently struck down an independent agency regulating the accounting profession for shielding federal officers from presidential supervision. It is difficult to blame them for attacking a majority opinion that, in the usual Kennedy style, effectively arrogates to the judiciary the power to decide another fundamentally political issue — how to resolve foreign policy disputes — that the Constitution leaves up to the political process.
Nevertheless, in his Zivotofsky dissent, Scalia forgets his Hamiltonian logic where it most clearly applies — foreign affairs — to discern a non-textual, congressional authority over passports. As Justice Thomas argues in his concurrence (the best opinion in the case), management of foreign affairs was widely understood at the time of the Framing to be an executive function. Alexander Hamilton, for example, declared in Federalist 72 that “the actual conduct of foreign negotiations,” “the arrangement of the army and navy,” and “the directions of the operations of war” should fall “peculiarly within the province of the executive department.” Only Thomas’s opinion properly solves the conflict in Zivotofsky by finding that the Framers understood the Constitution to grant the power over passports to the president — no mushy Kennedy balancing tests needed.
Why should a passport’s record of a birthplace spark such drama on the Supreme Court? No one seems to have raised a ruckus at the Supreme Court when the State Department started recording Taiwanese birthplaces as “China” in the 1970s. Having just returned after two weeks in Israel, I have a better sense of the local significance of these nuances. Jews, Christians, and Muslims struggle over every square foot of Jerusalem, where sites holy to each religion sit atop one other. Using “Israel” would conflict with longstanding U.S. foreign policy, which does not accept sole Israeli sovereignty over the holy city. When Congress passed the law at stake in Zivotofsky in 2002, George W. Bush declared that Congress would be “impermissibly interfere[ing] with the president’s constitutional authority to formulate the position of the United States, speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states.” (By the way, who wants to bet that this is one signing statement that the New York Times and the American Bar Association won’t claim has destroyed the constitutional order?).
Because the case involved Jerusalem, it could not help but provide a window into the struggle over U.S. policy in the Middle East. It also comes at a time when the sitting commander-in-chief seems more interested in domestic invocations of executive power to bully states or ignore Congress’s immigration, drug, and education laws than taking the initiative abroad. Zivotofsky’s defense of presidential power in foreign affairs no doubt will bolster President Obama’s claim to lead the nation on the Israel–Palestinian conflict and policy toward Iran. Obama will now have a freer constitutional hand to play if he ends America’s traditional defense of Israel at the United Nations or reduces U.S. military support and aid. He will argue against any new congressional efforts to increase sanctions on Iran or Syria or reduce support for the Palestinians because they interfere, à la Zivotofsky, with executive foreign policy in the Middle East.
But the true crucible will come when President Obama reaches his misguided agreement on the Iranian nuclear weapons program this summer. The White House has agreed to submit the deal to Congress within 60 days of signing it. Under the new accommodation, opponents must pass a law to reject the agreement, and, if such a rejection is vetoed (as it likely would be), garner two-thirds majorities of both houses to kill the agreement. This upends the constitutional order, in which the Senate must approve treaties by a two-thirds vote, not reject them.
Zivotofsky offers President Obama an end run around the Constitution’s treaty clause, already diluted by Congress’s law for reviewing the deal. Suppose President Obama promises non-aggression by the United States in exchange for a halt to Tehran’s nuclear programs. As John Bolton and I argued in National Review last December, such a significant commitment of U.S. sovereignty must undergo the Constitution’s treaty process to constitute a legally binding agreement. But President Obama could argue that he is making no deal at all; he is only setting executive foreign policy to remain friendly toward Iran as long as it remains a non-nuclear power. Any written text would only establish a “framework” for cooperation. He could thus refuse to send a deal with Iran to Congress because he had made no legal agreement that rose to the level of a treaty.
Republicans would respond by ramping up sanctions on the Iranian economy. Suppose they overcome a White House veto to do so. The Supreme Court’s decision suddenly could raise its ugly head. In the last year of his term, President Obama might refuse to obey the sanctions. He could repeat his refusal to enforce the laws and, as he did with immigration, claim that he is selectively prosecuting cases in the national interest, even if he chooses zero cases to bring. But Zivotofsky could give the White House an added dimension of authority. The Administration could argue that sanctions, even though passed pursuant to Congress’s sole control over foreign commerce, force executive-branch officers to contradict the president’s foreign policy toward Iran. While the dissenters in Zivotofsky thought the notion ridiculous, three years ago most would have found equally ridiculous that President Obama would systematically refuse to enforce the immigration laws in millions of cases.
This is why Justice Thomas’s opinion charted the true course for the Court. His finding that the executive power in foreign affairs encompassed passports does not undermine Congress’s control over international commerce. By mistaking the source of the power, both the majority and dissent transformed a rather minor case into a constitutional conflict between the executive and legislative branches. The majority’s outcome foisted on the Constitution an unwarranted and unpredictable balancing test that could support an evasion of the treaty power. The main conservative dissent accepted the conflict, lost, and in so doing turned its back on a once consistent defense of an energetic executive. Perhaps all of the justices could not help but decide this case with the coming constitutional conflict over Iran on the horizon. The majority’s decision, unfortunately, pretends that such matters are open to resolution in the courts, rather than in the political process where they belong.
Crossposted at National Review