Zivotofsky v. Kerry (Zivotofsky II) (1) is, at first glance, a very simple case. The Court ruled 5-4 that the president's power to recognize foreign nations is exclusive. As a result, Congress's attempt to constrain that authority via section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003 was unconstitutional. There, Congress had directed the president to include "Israel" as part of the designation of birthplace on the passport for any American born in Jerusalem.
The dissents addressed two issues. The first was to lament that the decision embodied a radical departure from precedent. "Never before," said Chief Justice Roberts, "has this Court accepted a President's direct defiance of an Act of Congress in the field of foreign affairs." (2) Critics of the decision also maintained that it was a foreboding course change that clearly favored the president in the Court's interpretation of the constitutional balance of powers (Goldsmith 2015; 2016).
A second issue that was addressed in dissent by Scalia and touched upon by Thomas in his concurrence concerned the nature of the recognition power and whether section 214(d) impinged upon it at all. This debate focused on the scope and definition of the respective branches' constitutional powers. It was a minor theme of the debate in the case. But, as I note below, had the Court taken a different course in Zivotofsky v. Clinton (Zivotofsky I), (3) these definitional concerns would have led to a different, perhaps much less controversial result.
In Zivotofsky I, the Court ruled 8-1 that the D.C. Circuit erred in dismissing the case as a political question. To the Court, the case addressed a justiciable issue: whether section 214(d) created a statutory right to have "Israel" noted on one's passport. Therefore, it was compelled to address whether that right could be abrogated by an executive decision concerning foreign affairs. This in turn forced the Court to revisit its prior decisions concerning the scope and definition of the president's power to conduct foreign affairs in particular and his power to act and restrict rights with or without the support of Congress more generally.
In Zivotofsky II, the Court debated the scope and definition of executive authority and the implications of dicta in two well-known precedents: United States v. Curtiss-Wright (in which Justice Sutherland set forth the "sole organ" vision of executive power in foreign affairs) and Youngstown v. Sawyer (where Justice Jackson set forth his tripartite taxonomy of presidential power with and without the clear support of Congress). (4)
Insofar as Zivotofsky II addressed whether section 214's requirement to add "Israel" to passports essentially forced the president to recognize Israel and therefore encumbered the executive's power to recognize nations, the Court's discussion was limited to only two possible outcomes. To the extent that it regarded the power to recognize nations as exclusive, Congress overstepped its bounds. To the extent that it is shared, Zivotofsky challenged the Court to clarify the conflict between Sutherland's dicta in Curtiss-Wright and Jackson's in Youngstown.
Much of the scholarly analysis addresses whether Zivotofsky II expanded or restricted executive authority in foreign affairs. (5) I argue that the implications of the case in this regard are much less ominous. The majority rejects the broad vision of power set forth in Curtiss-Wright and maintains that Zivotofsky II addresses only the scope of the recognition power: "the power to recognize or decline to recognize a foreign state and its territorial boundaries resides in the President alone." (6) All of this, said the Court, "underscores that Congress has an important role in other aspects of foreign policy, and the president may be bound by any number of laws Congress enacts." (7) So, while the recognition power may be exclusively executive, the rest of foreign relations power is shared.
On the other, the debate among the justices revisits questions about executive power and the constitutional balance of powers that have been left unaddressed for some time. In this respect, I compare the decision to cases such as Roe v. Wade (1973), Schenck v. U.S. (1919), Baker v. Carr (1962), Reynolds v. Sims (1963), and perhaps Miranda v. Arizona (1966). (8) In each of those decisions, the Court set forth prophylactic rules (the trimester system for abortions, the clear and present danger test for free speech, the one-person, one-vote rule for redistricting and reapportionment, and the Miranda rules for arrests) that precipitated subsequent constitutional conversations that clarified tense or unclear areas of the law.
In this regard, the decision is a welcome disruption to a balance (or perhaps tension) between Sutherland's and Jackson's visions of governmental powers that comfortably resides in many textbook analyses of executive and congressional authority. Cases such as Zivotofsky, Curtiss-Wright, and Youngstown address constitutional powers over foreign affairs and therefore resurrect age-old debates about how the president may conduct diplomacy. I argue that the debate and dicta in Zivotofsky demonstrate clearly that judicial and scholarly attempts to distinguish between domestic and foreign affairs powers need to be recast first, in terms of emergency powers more generally and, specifically, when the executive (supported by Congress or not) can restrict constitutional or statutory rights. Zivotofsky touches upon foreign affairs, but is not an emergency powers case. Youngstown took place during an extraordinarily unpopular war. But it was, at its base, not a foreign affairs case; it was a property rights case (Moore, Tipson, and Turner 1990, 773). Curtiss-Wright was also not an emergency case. Similar to Youngstown, it was essentially a property (or at least, economic) rights case. (9)
Second, Zivotofsky II raises important questions about (1) the definition and scope of "legislation" and the nature of statutory rights, (2) the role that the executive plays in interpreting legislation (particularly through signing statements), and (3) the role of all three branches in interpreting the constitution. These latter matters are the truly important aspects of Zivotofsky II. I discuss this at the end of the article.
The Decision: Zivotofsky II
In 2002, Congress passed and President George W. Bush signed the Foreign Relations Authorization Act, Fiscal Year 2003. Section 214(d) of the act stated:
(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES.--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 shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel.
President Bush issued a signing statement in which he rejected the constitutionality of the constraint placed on executive authority by section 214(d). He stated that if 214(d) were construed as mandatory, rather than advisory, it would "impermissibly interfere 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" (Bush 2002).
Menachem Binyamin Zivotofsky was born in Jerusalem on October 17, 2002. His parents claimed that section 214(d) created a statutory right to have "Israel" included in the description of his birthplace on his U.S. passport. His parents therefore requested to have the passport printed accordingly. The State Department refused the request and the Zivotofskys sued to have section 214(d) enforced.
In writing for the Court, Justice Kennedy struck down section 214(d) and asserted that the Act unconstitutionally impinged upon executive authority to conduct foreign affairs and, in particular, to recognize foreign nations: "Recognition is a matter on which the nation must speak with one voice. That voice must be the President's." (10) In rendering this decision, the Court raised and debated the following questions.
Is the power to recognize nations exclusively the province of the executive?
If so, did section 214(d) impinge upon it?
May the President declare in a signing statement that she or he will ignore the parts of legislation that s/he regards as unconstitutional?
Exclusivity of the Executive Power in General and the Recognition Power in Particular: A Very Brief Tour of Youngstown and Curtiss-Wright
The recognition power arises from the president's power to conduct foreign affairs and to receive ambassadors as set forth in Article II of the Constitution. Insofar as the constitutional outline of executive power is cast in broad, relatively undetailed terms (Article I's delineation of congressional authority is much more detailed and specific), (11) the scope and definition of this power an d that of Congress to check and balance it have been the topic of ongoing scholarly and judicial debate and analysis.
The talismanic judicial opinions on the subject derive from dicta set forth in Curtiss-Wright and Youngstown. In the former, Congress had, by joint resolution on May 28, 1934, authorized the president to prohibit the sale of arms to either side in the Bolivian civil war. (12) Curtiss-Wright Export Corporation challenged the delegation of power as being too broad, essentially granted legislative power to the executive branch.
Writing for the Court (13) and sustaining the joint resolution, Justice Sutherland set forth the "sole organ" theory of executive power in foreign affairs.
It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of...