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No Good Options in Supreme Court’s Israel Ruling
The Supreme Court’s recent decision in Zivotofsky v. Kerry — holding that Congress could not force the president to recognize Jerusalem as part of Israel on American passports — has occasioned much argument on behalf of both those who believe in expansive executive power on foreign affairs and those who want the legislative branch to have a greater say. As I note in my new column for Defining Ideas, however, what’s largely been overlooked is how weak the constitutional support for either side’s position is. From the piece:
Unfortunately, any fair-minded reading of the available constitutional texts quickly reveals that neither Congress nor the President has any clear textual warrant to discharge a function, issuing passports, that one of them of necessity must control for the government to function. In Zivotofsky, Justice Kennedy accepted Secretary of State Kerry’s position that the President’s power to “receive ambassadors” necessarily carried with it the power to decide which nations could send them, and thus grants the President control over the entire process of recognizing foreign nations. That textual argument is a large stretch. In his short but pithy dissent, Chief Justice Roberts quotes Alexander Hamilton, who noted that the relevant clause imposes a duty on the President that “is more a matter of dignity than of authority.”
Indeed, presumably receiving ambassadors could be subject to some bilateral treaty under which Article II, Section 2, of the Constitution does not give the President sole control over the matter. Quite the opposite, it provides: “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”
The Senate, but not the Congress, has an explicit check on the President that is inconsistent with any extensive claim that the President has exclusive and preclusive control over foreign affairs. Take it one step further: close to half of the enumerated powers of Congress in Article I, Section 3, relate to foreign affairs and military operations, including those that limit the President in his role as “commander-in-chief.” Article II of the Constitution instructs the President to “take care that the Laws be faithfully executed,” which speaks more to his subservience to Congress than it does to his independence.
Unfortunately, the textual arguments on behalf of Congressional power are every bit as tenuous. Just where is that power found? Justice Scalia acknowledged that Congress does not have plenary power to pass whatever legislation meets its fancy. He therefore sought to identify its textual source of power over passports. One candidate is the power of Congress “to regulate commerce with foreign nations.” Unfortunately, passport control for American citizens has a lot less to do with foreign commerce than does tariffs and trade. Nor does passport control relate to Congress’s power of naturalization, which deals with making aliens citizens, not granting passports to American citizens.
I argue in the piece’s conclusion that the very structure of the Constitution requires much more accommodation between the legislative and executive branches on foreign affairs than it does in the more stringently-defined area of domestic concerns. You can read the argument in full here.
Published in Law
I agreed with the dissent, and didn’t find it to be a very difficult case.
The challenged law, Sec. 214(d) of 116 Stat. 1350, says: “For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”
It seems to me that this provision deals with the implementation of naturalization law. Art. I, Sec. 8 of the Constitution gives Congress the power “[t]o establish a uniform rule of Naturalization.” Sec. 1 of the 14th Amend. says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Taken together, these Constitutional provisions mean that: (1) obviously, a person born in the US is a US citizen, and (2) Congress has the power to make a person born outside of the US a US citizen via naturalization laws.
Sec. 214(d) deals explicitly with a US citizen who is born outside the US. It seems to me that the naturalization power, coupled with the “necessary and proper” clause, give Congress the power to make regulations dealing with documentation of the status of naturalized US citizens.
[Cont’d]
[Cont’d]
It also seems to me that in dealing with the specific issue presented by the case — a passport — the foreign commerce clause, coupled with the necessary and proper clause, gives Congress ample authority to enact Sec. 214(d). A passport is used by a US citizen traveling to a foreign land. Such a person is necessarily moving in the “channels of foreign commerce” — i.e. they have to get to the foreign country. This same rationale, applied to the interstate commerce clause, was used as a basis for Congressional power long before the expansive “affecting commerce” doctrine adopted West Coast Hotel v. Parrish (1937) and Wickard v. Filburn (1942).
I think that Thomas’s dissent took an overly narrow view of this power. The question is not whether putting the word “Israel” on a passport relates to commerce. The question is whether the issuance of passports is within the commerce power, and I think that it clearly is. Then, under the necessary and proper clause, Congress is allowed to impose technical requirements on the issuance of passports.
[Cont’d]
[Cont’d]
The majority’s argument about the “recognition” power struck me as inapposite. The majority had substantial, though not unanimous, historical support for the proposition that “recognition” of a foreign nation is the exclusive power of the President. But the majority then sneaked in “or defining its borders,” with what seemed to me to be little or no support. This looks more like sleight-of-hand to reach a desired outcome.
I liked Scalia’s line about how the majority first infers the recognition power from the power to “receive ambassadors,” and then infers from the recognition power the exclusive right to resolve questions about the territorial claims of foreign nations. He called it “a leap worthy of the Mad Hatter.”
The US does recognize Israel. Now, if the US recognized a separate state of “Jerusalem,” or if the US did not recognize Israel, I could see how Sec. 214(d) would conflict with the recognition power. But this is not the case, so there is no conflict.
As I said, I didn’t think that it was a particularly hard case.