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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