Symposium: Justice Thomas gets it right in Zivotofsky

Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law and Director of the International & Comparative Law Programs at the University of San Diego Law School.

In Zivotofsky v. Kerry, Justice Clarence Thomas’s partial concurrence/partial dissent argues that “[t]he President is not constitutionally compelled to implement [the statute relating to Jerusalem] as it applies to passports because passport regulation falls squarely within his residual foreign affairs powers and Zivotofsky has identified no source of congressional power to require the President to list Israel as the place of birth for a citizen born in Jerusalem on that citizen’s passport.” I think this is the right approach for three reasons.

First, Thomas’s approach takes the issues in the correct order. If Congress lacks an enumerated power to pass a statute, the president need not follow it, regardless of whether it infringes an exclusive presidential power. The majority skips straight to the exclusivity question, an approach that disregards the centrality to our constitutional structure of Congress’s limited powers.Second, as Justice Thomas argues, it’s hard to find any source for Congress’s power to adopt the provision in question. Congress has no textual power specifically over passports. Congress undoubtedly has some ability to regulate the form and issuance of passports, as necessary and proper to its enumerated powers over, for example, foreign commerce. But as Thomas shows, the provision at issue is not directed toward regulating foreign commerce or facilitating individuals’ participation in foreign commerce. It is instead quite transparently an attempt to take a position (or rather to force the executive to take a position) on the status of Jerusalem. The statute in which the disputed provision appears is titled “United States Policy with Respect to Jerusalem as the capital of Israel.” Congress’s view on the status of Jerusalem has no bearing on foreign travel for commercial purposes (nor upon any question of naturalization, the other power Zivotofsky invoked in support). That Congress can regulate passports for some purposes does not mean it can regulate passports for all purposes. As Thomas quotes McCulloch v. Maryland, the “end [must] be legitimate” – in the sense of furthering an enumerated power – and here it is not.

The majority assumes its way past this problem; Justice Antonin Scalia in dissent, though usually a careful examiner of Congress’s power, somewhat surprisingly finds power here on the basis of very broad emanations from the naturalization power.

Third, the majority’s central proposition – that the provision infringes the president’s exclusive recognition power – is itself quite dubious. The president has no textual recognition power. The president’s power is to receive ambassadors. That power in turn may fairly imply that the president has authority to decide which governments’ ambassadors to receive (and hence which to recognize as legitimate). And perhaps these powers are indeed exclusive. But as Chief Justice John Roberts says most powerfully in his dissent, the provision at issue here has nothing to do with recognizing a government. The question is not about Israel’s existence but about its boundary. The majority finds an exclusive presidential power only by sliding from receiving ambassadors to recognition of governments to recognition of boundaries. At this point we are no longer talking about a textual power, exclusive or otherwise.

Justice Thomas again has the right approach. The president’s power doesn’t come from the ambassador reception clause, because receiving ambassadors has nothing to do with boundary disputes. Instead, the power at issue is diplomatic communication: who is going to communicate to the world U.S. policy with respect to Israel’s boundary? Like many foreign affairs powers, this power isn’t spelled out in the Constitution, but it is (as Justice Thomas argues at length) best understood as part of the president’s executive power over foreign affairs, conveyed by the vesting clause of Article II, Section 1. (This article discusses the same topic.). The executive foreign affairs power isn’t exclusive in the sense that it could override an enumerated congressional power; it is residual, available to the president in the absence of enumerated congressional powers. Congress can act in ways that undermine it, so long as Congress acts within its enumerated powers. For example, Congress may, for purpose of a statute regulating imports, define products made in Jerusalem as products of Israel, even if the president declines to say that Jerusalem is part of Israel. But where Congress does not have an enumerated power (as it does not, in terms of communicating U.S. foreign policy, via passports or other diplomatic instruments), the president is the sole actor.

On this point Justice Scalia’s dissent captures the Constitution’s general design well. For the most part, U.S. foreign policy is a concurrent enterprise, with the president exercising executive powers and Congress exercising legislative powers – hopefully in coordination, but sometimes in conflict. As he puts it, “[t]he President will exercise his powers on the basis of his views, Congress its powers on the basis of its views.” But a check on Congress in this process is that Congress cannot go beyond its enumerated powers, and Scalia’s opinion gives short shrift to that check. Scalia links the Jerusalem passport provision to the naturalization power, solely on the basis that “[t]he birthplace specification promotes the document’s citizenship authenticating function by identifying the bearer, distinguishing people with similar names but different birthplaces from each other, helping authorities uncover identity fraud, and facilitating retrieval of the Government’s citizenship records.” No one could plausibly believe that this is the reason Congress enacted the Jerusalem passport provision; as noted, the statute’s title expressly says otherwise.

Interestingly, Justice Thomas goes on to say that Congress’s allowing “Israel” to appear on Zivotofsky’s consular report of a U.S. citizen’s birth abroad, unlike on his passport, is within Congress’s power over naturalization. (The majority finds that Zivotofsky waived this argument; Thomas’s opinion is a dissent on this issue.). I am less persuaded by his view here. Like the passport provision, the provision on the consular report is expressly an attempt by Congress to declare the U.S. position on the status of Jerusalem. True, it is less intrusive on the president because (as Thomas says) the report is an internal U.S. document, not a communication to a foreign power. But I think this approach mistakes the question of the infringement on the president with the antecedent question of whether Congress has an enumerated power. As with passports, Congress assuredly has some power to regulate the consular reports (under the naturalization power, to distinguish between people who do not need to be naturalized to become citizens and people who do). But taking a position on Jerusalem’s status is no more necessary to proving birth abroad to U.S parents than it is to providing a passport for foreign travel.

As a final note, although I think the majority erred in thinking that the status of Jerusalem has anything to do with the president’s power to receive ambassadors, there are reasons to celebrate the majority opinion as well. The majority opinion is written narrowly, expressly emphasizing its limits in numerous places. By linking the case to the exclusivity of the reception clause (albeit unpersuasively) the majority avoids any sweeping statements about exclusive presidential power in foreign affairs. Indeed, it goes out of its way to reject the executive branch’s reliance on the infamous Curtiss-Wright opinion and its broad dicta favoring executive exclusivity in foreign affairs. (The Chief Justice also has some harsh words for Curtiss-Wright at pages 5-6 of his dissent.) The centerpiece of the majority’s reasoning is that Congress sought to compel the president to speak on a question of formal recognition. As the Court puts it, “Here, the subject is quite narrow. The Executive’s exclusive power extends no further than his formal recognition determination.” But the majority also notes that “[t]he Executive is not free from ordinary controls and checks of Congress merely because foreign affairs are at issue … It is not for the President alone to determine the whole content of the Nation’s foreign policy.”

For this reason I disagree with Professor Jack Goldsmith, writing at Lawfare, who sees the case as an important win for the executive. One may fairly hope instead that Zivotofsky will prove a narrow precedent for exclusive executive power, and may perhaps be a welcome step toward eventual full repudiation of Curtiss-Wright. The separation-of-powers danger in Zivotofsky, as it was briefed and argued, was that it might become a precedent for much wider claims of presidential exclusivity. For example, what about the statute suggested above that defines Jerusalem as part of Israel for purposes of a trade regulation? Or, more broadly, what about any congressional statute that undermines or frustrates a presidential foreign policy (including, perhaps, a statute disapproving of the president’s pending nuclear deal with Iran)? A broad ruling might have brought these into constitutional doubt. But the opinion as written does not; it says that “the President’s exclusive power extends no further than his formal recognition determination”; while Congress may not “directly” contradict that power, “[t]his is not to say Congress may not express its disagreement [with presidential foreign policy] in myriad ways.”

Thus, although in the particular case executive power (rightly) prevails, in the general case Justice Scalia’s vision of competing and overlapping powers in foreign affairs more likely remains the usual course.