The Return of the King: How the Supreme Court Distorted the Jackson Concurrence and Expanded Executive Power in Zivotofsky Ex Rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015)

• Publication year: 2021
• Citation: Vol. 96

96 Nebraska L. Rev. 198. The Return of the King: How the Supreme Court Distorted the Jackson Concurrence and Expanded Executive Power in Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015)

The Return of the King: How the Supreme Court Distorted the Jackson Concurrence and Expanded Executive Power in Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015)(fn*)

Michael Blackburn

TABLE OF CONTENTS

I. Introduction .......................................... 198

II. Background ........................................... 200
A. A Brief History of the Relevant Case Law .......... 200
1. Youngstown Sheet and Tube Co. v. Sawyer ....... 201
2. Dames and Moore v. Regan ...................... 202
3. Hamdan v. Rumsfeld .......................... 203
4. Medell´ín v. Texas .............................. 205
B. The Procedural History of Zivotofsky ............... 206

III. Analysis .............................................. 209
A. The Third Tier of the Jackson Concurrence Standard Gets Lowered ........................... 209
B. A Flawed Functionalist Approach .................. 213
C. The Consequences of the Court's Errors in Zivotofsky ......................................... 217

IV. Conclusion ............................................ 219

I. INTRODUCTION

The City of Jerusalem holds a special place in world heritage. It is home to fundamentally sacred sites for three of the largest religions in the world(fn1) and has been center-stage for multiple religious crusades.(fn2)

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From the Canaanites and Romans, to the Ottomans, to Hamas and the Israelis today, the battle for its possession has spanned millennia.(fn3) That struggle for control has also entangled U.S. foreign policy since the birth of modern Israel in 1948.(fn4) After almost seven decades, a solution continues to elude the country's policy makers.(fn5)

Under our Constitution, the Judicial Branch does not play a direct role in deciding U.S. foreign policy regarding Jerusalem, leaving that task to the Executive and Legislative Branches instead.(fn6) However, in 2015, Zivotofsky ex rel. Zivotofsky v. Kerry(fn7) presented the Court with a conflict between those branches over control of that policy. The dispute was the result of a long battle stemming from section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003.(fn8) This section allowed American citizens born in Jerusalem to choose to have their passport list Israel as their place of birth.(fn9)

Section 214(d) directly contradicted the Executive Branch's stance on the status of Jerusalem, which has consistently been a refusal to acknowledge any country's sovereignty over the city since the creation of Israel in 1948.(fn10) On the same day the President signed it into law, he also issued a statement clarifying the American diplomatic position on sovereignty over Jerusalem had not changed.(fn11) The statement also claimed if section 214(d) was interpreted as mandatory, it would unconstitutionally interfere with the Executive Branch's authority over foreign affairs.(fn12) The policy conflict caused by section 214(d) was aggravated by the Executive Branch's Foreign Affairs Manual (FAM),

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which defines the State Department's guidelines on listing place of birth on U.S. passports.(fn13) The FAM prohibits the issuance of passports that list a place of birth that contradicts "Executive Branch policy."(fn14) This policy clash set the stage in Zivotofsky for a rare foreign-affairs separation-of-powers dispute between the Legislative and Executive Branches.

This Note argues the Zivotofsky Court erred by applying a lower standard than it previously relied on when assessing the constitutional division of the Executive Branch's foreign-affairs powers relative to the Legislative Branch. The Court's error was exacerbated by the functionalist persuasion the Court relied on in order to reach its verdict. The result of this wayward step was to upend the established precedent, making predictions of future case outcomes useless, while simultaneously expanding the power of the Executive Branch.

Part II of this Note will provide an overview of the relevant case law on the separation of powers in foreign-affairs cases. It will also discuss the winding procedural path Zivotofsky took over the span of more than a decade before finally being decided on the merits by the Supreme Court. Part III compares the standards applied in the Zivotofsky ruling with the standards previously applied under the Jackson Concurrence in foreign-affairs separation-of-powers questions and the rejection of functionalism in those previous decisions. Finally, Part III forecasts some of the possible outcomes of the Zivotofsky decision, and Part IV concludes.

II. BACKGROUND

A. A Brief History of the Relevant Case Law

An analysis of the balance of power between the two political branches in foreign affairs relies heavily on case law. This is because the Constitution is largely silent or vague on many subjects dealing with foreign affairs.(fn15) Complicating this further is the wide berth the Court has traditionally given the political branches in dealing with such issues because of its exceptionalist approach to foreign affairs.(fn16) While a debate over the depth or merits of this approach is beyond the

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scope of this Note,(fn17) it is important to note the result of that approach is a void of rulings in this area of law.(fn18) This exceptionalist approach also separates foreign-affairs cases from other separation-of-powers cases because the Court has used a deferential standard to decide foreign-affairs questions in the few cases it has actually heard.(fn19) The cornerstone case in this area is Youngstown Sheet and Tube Co. v. Sawyer.(fn20) With Youngstown as its foundation, the Court has built a cannon of case law by adding decisions in Dames and Moore v. Regan,(fn21) Hamdan v. Rumsfeld,(fn22) and finally Medell í n v. Texas.(fn23)

1. Youngstown Sheet and Tube Co. v. Sawyer

The Youngstown decision came during a shift in American history as the country was engaged in a new war in Korea.(fn24) Under the proliferating specter of the Cold War, President Truman was faced with a strike by the entire steel industry while he was trying to rearm the military for action in Korea.(fn25) President Truman, relying on his powers as Commander in Chief, moved to nationalize the steel industry after collective bargaining broke down in order to keep steel production going.(fn26) The executive action was objected to by the industry and wound up before the Court in 1952.(fn27)

Youngstown foreshadowed tangled decisions to come. It was a 6-3 decision with five concurring opinions holding President Truman's actions were not within the Executive Branch's powers and were therefore unconstitutional.(fn28) The most well-known part of the Youngstown decision is the now familiar concurrence written by Justice Jackson, known colloquially as the "Jackson Concurrence." In his concurrence,

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Justice Jackson formulated a tripartite analytical scheme to explain and evaluate the ebb and flow of powers between the two political branches.(fn29) The three parts of his scheme were:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . . [Executive Action] pursuant to an Act of Congress [is] supported by the strongest of presumptions and the widest latitude of judicial interpretation . . . .

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. . . .

3. When 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. Courts can sustain exclusive Presidential control . . . only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution . . . .(fn30)

This analytical scheme is the foundation for analysis of separation-of-powers questions in foreign-affairs cases.(fn31) It sets out the Executive Branch's sources of power and the judicial standard that should be used to evaluate the constitutionality of the Executive's actions. Using this framework, Justice Jackson concluded the President's actions fell into the third category and that the President did not have the power to nationalize the steel industry.(fn32)

2. Dames and Moore v. Regan

More than thirty years after Youngstown, the Court formally adopted the Jackson Concurrence for the first time in Dames and Moore v. Regan.(fn33) This time the Court was asked to decide the constitutionality of two Executive Orders issued by President Carter.(fn34) In response to the capture of the American embassy in Tehran-resulting in several Americans being held hostage-the President moved to freeze all of the assets of the Iranian government.(fn35) The petitioner, Dames and Moore, filed suit in the United States District Court for the Central District of California against the Government of Iran and a

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third party whom it claimed owed over three million dollars in compensation under a contract for services already performed.(fn36)

The district court ruled in favor of Dames and Moore. However, the President issued an Executive Order...