The law: Jerusalem passport case: judicial error and the expansion of the president's recognition power.

Author:Adler, David Gray

The dramatic growth in presidential power in foreign affairs and national security, spurred by 75 years of judicial decisions that find little support in the Constitution, took another leap when the District of Columbia Circuit Court of Appeals, in Zivotofsky v. Secretary of State (2013, 197, citing art. II, sec. 3), held for the first time in American history that the president's duty under the Reception Clause to receive ambassadors and ministers is, in reality, an exclusive discretionary power, broad enough to recognize foreign governments and nations and to determine and implement the policy governing the act of recognition. What had formerly stood as dicta was now law, and presidential exercise of the recognition power was beyond the authority of Congress to regulate or diminish. In a novel, separation of powers case with important ramifications for the conduct of American foreign policy, the circuit court addressed a conflict between the congressional power to regulate the form and content of passports and the presidential exercise of the recognition power. In a decision pregnant with potential to become a landmark ruling, the court held that congressional legislation in 2002 "impermissibly intrudes" on the president's exclusive power to recognize foreign governments and the ancillary authority to "determine the policy which is to govern the question of recognition" (Zivotofsky 2013, 213, quoting United States v. Pink 1942, 229).

If Zivotofsky, on appeal to the U.S. Supreme Court, assumes landmark status, it will do so despite the relatively innocuous and obscure origins that contradict the importance of the issue and the controversy that surrounds it. The Passport Act of 2002 requires the Secretary of State to record Israel as the place of birth on the passport of a U.S. citizen born in Jerusalem, if requested by the parent or guardian of the applicants (116 Stat. 1350). The State Department, however, has refused to implement the statute since the executive branch does not, and never has, recognized Israel's claim to sovereignty over Jerusalem.

Zivotofsky was cast by the District of Columbia Circuit as a case of "first instance"--the first in American history in which a court was asked to resolve a clash between the president and Congress over the issue of recognition. The drama in the case was heightened by the fact that it was litigated against the backdrop of one of the most contentious, unresolved questions of this, or any century--the status of Jerusalem.

The battle between Congress and the president was joined when Congress enacted the Passport Act under its broad authority to determine passport policies on behalf of the United States. In a concurring opinion, Judge David Tatel stated, "It is beyond dispute that Congress's immigration, foreign commerce and naturalization powers authorize it to regulate passports" (Zivotofsky 2013, 221). But that power, according to the court, is not exclusive. Rather, it is a shared power; the president may regulate passports when national security interests are at stake. The clash between the president and Congress plunged the court into "relatively uncharted waters, with few fixed stars by which to navigate" (Zivotofsky 2013, 221, Tatel, J. concurring).

As it happened, the circuit court selected a "star"--Justice Jackson's tripartite analysis in Youngstown Sheet & Tube Co. v. Sawyer (1952)--to navigate the issues. It concluded that the case fell into Justice Robert H. Jackson's third category of presidential power: "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter" (Zivotofsky 2013, 220, quoting Youngstown 1952, 637). Through passage of the Passport Act, the court reasoned, Congress had usurped the president's exclusive recognition power and thus it had impermissibly intruded upon the president's authority. Accordingly, the shared power over passports, subtracted from the president's exclusive authority over matters of recognition, means the executive power trumps the legislative power.

The circuit court's conclusion that Zivotofsky belonged in Jackson's third category hinged on neither "the text of the Constitution nor originalist evidence," which provide "little help" (Zivotofsky 2013, 206). Rather, the court turned to "post-ratification history," which it regarded as proof of an exclusive executive recognition power, and the "sole-organ" doctrine and the concept of broad judicial deference to the president in foreign affairs, as unleashed in the Supreme Court's opinion in United States v. Curtiss-Wright Export Corp. (Zivotofsky 2013, 207-10, 211, quoting United States v. Curtiss-Wright Export Corp. 1936, 319).

The appellate court's holding that the president's recognition of foreign states and governments is an exclusive executive power and superior to congressional legislation governing passports raises a cobweb of legal questions. Why did the court characterize the presidential recognition power as "exclusive" and exalt it over and above a statute? Why did the court attribute to the executive sweeping authority to determine the policy to implement and govern the recognition? What limits, if any, apply to such an expansive power? Why does the court continue to invoke the discredited dicta of the Supreme Court in Curtiss- Wright!

This article examines the reasoning of the court and concludes that it exaggerated the scope of the president's recognition power at the expense of congressional authority and the private rights of Menachem Zivotofsky. This work affirms my earlier findings, published 20 years ago, that the president's recognition power, shaped by international law presuppositions, is primarily ministerial in nature, largely devoid of discretionary power, and does not include the authority to determine the policy governing the act of recognition. Since the presidential recognition power is but one of various means within the Constitution of granting recognition to a foreign government or nation, it follows that it is not an exclusive power (Adler 1996a, 133-58; Reinstein 2013, 1-60).

In fact, the act of recognition may be performed in a variety of ways. Through means of conferring recognition prescribed by international law, the president, acting unilaterally, has the duty to receive an ambassador or foreign minister through the "Reception Clause," which provides that the president "shall receive Ambassadors and foreign Ministers." In addition, the president and the Senate, acting jointly, may assert the recognition power through their authority to appoint ambassadors. The president and Senate, in their capacity as the treaty power, may grant recognition. Alternatively, Congress may recognize foreign governments and nations through enactment of legislation regulating commercial intercourse, as it has done historically (Adler 1996a, 151n.5; Moore 1906, 5:97; Reinstein 2013, 1-60).

The president's only unilateral role in performing the recognition function is through the Reception Clause. The appointment of an ambassador is a shared power, which requires consultation and joint decision making between the president and Senate. Interestingly, the other two methods of conferring recognition--through the treaty power and legislation--reflect the exercise of a shared power that simultaneously determines the policy to govern the act of recognition the moment it is granted.

Even if one concluded, as the circuit court did in Zivotofsky, that the president's recognition power is exclusive, the president has no unilateral authority to simultaneously implement the policy to govern recognition when it is conferred. Manifestly, the president cannot by himself pass legislation, make a treaty or appropriate funds from the U.S. Treasury--powers typically associated with the implementation of foreign policies. The utter absence of those necessary tools and authority undermines the claim of a sweeping presidential recognition power to formulate and execute the policy governing recognition. The Constitutional Convention's design for the conduct of foreign policy, moreover, reflected a commitment to collective decision making, not unilateral executive authority and, in every instance, the most important, substantive powers in that realm require shared decision making. (Adler 1996b, 19-22; 1996c, 84-94; Fisher 2013, 1-16; Levy 1988, 30-53).

The appellate court's ascription to the president of sole and sweeping authority to grant recognition to foreign governments and nations, and to determine the policy to implement and govern that unilateral executive decision, represents a failure to grasp the founders' conception of the president's limited authority in extending recognition. The president, upon authentication of the credentials of the visiting ambassador or minister, "shall" receive the minister in accordance with the international law principles that shaped the Reception Clause of the Constitution, thus granting recognition. But the question of the nature--if any--of the relations with the newly recognized sovereign entity is a policy matter, severed from the act of recognition and a matter to be separately determined by Congress and the president. Finally, judicial reliance on Curtiss-Wright (1936) is misplaced and represents "judicial error" which, Louis Fisher rightly maintains, must end (Fisher 2014, 66-72). It is argued here that the executive branch has a duty to comply with the Passport Act.

Facts and Path of the Case

On May 14, 1948, President Harry S. Truman recognized the State of Israel. But Truman, like all of his successors, refused to recognize Israel's assertion of sovereignty over Jerusalem. The official U.S. position since the Truman administration's declaration, has been one of neutrality, grounded in the belief that the status of...

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