If today’s case from the Supreme Court had concerned pretty much any other subject matter, any other geographic area of the world, I think it would have been a bit of a no-brainer, at least as to the result, if not necessarily the logic leading there.
But it didn’t concern any other subject matter.
No other place in the world represents what Jerusalem does, the spiritual focus of the world’s three major monotheistic religions, the declared capital of two states, one of which remains more than a little bit inchoate and both of which seem to attract international media scrutiny and violence with a force as powerful and inexorable as gravity.
Israel has, of course, exercised de facto political, military, and civil control over at least portions of Jerusalem since 1948, when initial UN plans for the city to exist apart from any state were scotched by the 1948 Arab-Israeli war, the double annexation of the city by both Jordan and Israel, and the resulting Berlin-like division of the city into zones of military control. Since the Six-Day War in 1967, Israel has had functional control over the entire city and its eastern hinterlands. Substantial portions of the Israeli government are housed there, and the Palestinian Authority also claims Jerusalem as its capital.
All this is well-known as a matter of fact, but matters of law and diplomacy are a different matter. Since 1948, no U.S. President has ever formally recognized Israeli sovereignty over Jerusalem. Technically, no nation other than the United Kingdom (and debatably Pakistan) has recognized anyone’s claim to have annexed Jerusalem, and diplomats since the 1960’s have taken great care to sidestep or avoid addressing the issue of whether any nation has a legal claim to jurisdiction to the city.
Congress Steps In
In 2002, the U.S. Congress acted in support of Israel’s claim that Jerusalem is within its sovereign borders. To do so, Congress passed Section 214 of the Foreign Relations Authorizations Act for Fiscal Year 2003, which pushed the President to relocate the U.S. Embassy to Israel from its current location in Tel Aviv to Jerusalem, and as relevant to this case also included subsection (d), the law challenged by today’s case. That section reads, in full:
(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 George W. Bush signed FRAA-2003 into law, but in a signing statement noted that he believed that if section 214 were interpreted to be mandatory rather than advisory, it would impermissibly interfere with his power to conduct diplomacy on behalf of the United States, and made enough of a show of stating that official U.S. policy on Jerusalem was unchanged notwithstanding the new law. President Barack Obama has, without explicitly saying so, acted in complete harmony with Bush’s signing statement, and since 2003 when the law took effect, the State Department has, by Presidential order, utterly ignored section 214(d).
Passports issued since 2003 have, notwithstanding section 214(d), identified “Jerusalem,” alone, as the place of birth of a person born in that city; they have been silent as to which, if any, nation-state includes Jerusalem within its boundaries of territorial sovereignty. This has been very much by design of the diplomats.
Citizen Zivotofsky’s Lawsuit
Menachem Binyamin Zivotofsky was born of American parents in the city of Jerusalem in 2002. As both of his parents are U.S. citizens, he is a U.S. citizen as well. Shortly after his birth, his mother applied for a consular report of a birth abroad,* listing her son’s place of birth as “Jerusalem, Israel,” which is exactly what Congress declared, in section 214(d), it should say. But the passport, when issued, identified the then-infant Zivotofsky’s birthplace only as “Jerusalem.”
If you’d have asked me, and as I recall opining when first seeing this case on the Supreme Court’s docket, it looked to me like a “political question,” the sort of issue that the Courts ought to and often do refuse to decide because the matter is to be resolved in political relations between the President and Congress. The conduct of foreign relations is the classic example of the kind of issue upon which the Courts punt under the political question doctrine: “Who is the sovereign de jure or de facto of a foreign territory is a political question the determination of which by the political departments of the government conclusively binds the judges.” Oetjen v. Central Leather Co. (1918) 246 U.S. 297.
So it was hardly a surprise when the District Court for the District of Columbia threw out Zivotofsky’s complaint, saying that Zivotosky lacked standing to bring the claim on the grounds that a citizen does not have a right to have a passport reading anything in particular. On appeal, Court of Appeals for the District of Columbia Circuit reversed, saying that he did have a legal interest in the contents of his passport. The case was remanded. Then, the government moved to dismiss the case under the political question doctrine, and the District Court granted that motion. On appeal, the Court of Appeal affirmed that decision.
Zivotofsky’s case first went to the Supreme Court in 2010, and produced a decision that Section 214(d) was not sufficiently political that the Courts were required to refrain from ruling on its Constitutionality. But the Supreme Court did not then issue a ruling substantively deciding the constitutionality one way or another; rather, it remanded the matter back to the D.C. Circuit, which found Section 214(d) unconstitutional on the grounds that it represented an overreach by Congress into the President’s power to conduct foreign relations. Today’s case decided the appeal from that decision.
The Majority Opinion
The Court, in a 6-3 opinion by Justice Anthony Kennedy, today examined the basis of the power to recognize sovereignty of other nations. Kennedy’s decision includes an interesting historical discussion of President George Washington recognizing the Revolutionary Government of France and a change of mind by Alexander Hamilton in light of that fact about what the President’s inherent power to receive ambassadors meant for the government as a whole.
Presidents, not Congresses, receive ambassadors. Presidents, not Congresses, appoint ambassadors, consuls, and other diplomatic agents of the government. Presidents, not Congresses, negotiate treaties. So, even without examining what it means to be the executive power, Kennedy opines, the Constitution provides plenty of overt textual authority for the proposition that the President has the ability to recognize sovereignties abroad. From there, Kennedy underlines the importance that despite political divisions which might exist at home, legal precedent has for more than two centuries consistently emphasized that the government speak with one voice when dealing with foreign powers.
Congress is not without authority; it regulates commerce, immigration, and naturalization; it may outlaw piracy and pass certain other laws regulating conduct on the high seas, it regulates the military, still technically has the power to grant letters of marque and reprisal if we ever wanted to return to the use of privateers, and of course, it has the power to declare war. So there is some “interdependence” and “reciprocity” over foreign relations as between executive and legislative, but Kennedy finds no check or balance against the President’s sole power to recognize foreign governments and the territories over which those governments exercise authority.
Instead, he looks at what the judiciary does with regard to foreign policy. There, he finds an unbroken history of judicial deference to the President, tracing back to Martin Van Buren’s recognition of British sovereignty over the Falkland Islands in 1839. (Williams v. Suffolk Insurance Co., 13 Pet. 415, 420.) So while the Court stopped short of adopting a rule that the President has “exclusive authority to conduct diplomatic relations” and that the President is “the sole organ of the federal government in the field of international relations,” as urged by the Government, the opinion is pretty decisive that at least with respect to the issue of what goes into passports,
[J]udicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations. Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear. Congress cannot require him to contradict his own statement regarding a determination of formal recognition. Slip op., at 18.
Therefore, Kennedy writes,”both common sense and necessity” require that Congress’ attempt to micromanage the President’s issuance of passports exceeds Congress’ power to participate in regulating foreign affairs and infringes upon the President’s power to recognize what government has sovereignty over what territory — much less to contradict Presidential statements about what territory is lawfully part of which state. So section 214(d) is unconstitutional, notwithstanding other, more generalized powers of Congress to regulate passports. What Congress cannot do is selectively micromanage the foreign policy, at least to the point of requiring that the President contradict himself.
The Other Opinions
Justice Stephen Breyer concurred, briefly, stating as I would have that the matter presents an entirely political question and the Court should simply have abstained from deciding anything.
Justice Clarence Thomas concurred in part and dissented in part, agreeing that section 214(d) allows the President to issue passports in the manner that he sees fit. But, Thomas notes that since Congress can regulate immigration and naturalization, it could legislate regarding the manner in which Zivotofsky’s citizenship was recognized. He also questioned whether compliance with section 214(d) would have constituted “recognition” of Israeli sovereignty over Jerusalem. Thomas’ dissent is extensive and very carefully nuanced, and I admit that as of this morning, I’ve not read it nearly as closely as I have the majority opinion; it will be very useful, however, in forecasting Justice Thomas’ future jurisprudence about the scope and effect of the “necessary and proper” clause.
Chief Justice John Roberts and Justice Samuel Alito dissented completely. It was simply too big a pill for them to swallow that the President can simply defy an Act of Congress, even in the field of foreign affairs. They accuse the President of shirking his duty to faithfully execute the laws. They advance a doctrine that the broad structure of checks and balances over exercises of power should be presumed in all spheres of governmental activity, and the Constitution’s parsing out of foreign policy powers between the President and Congress make abundantly clear that foreign policy is no different than anything else in that regard. This is as close as I’ve ever read of Roberts expressing outrage or disgust in a dissent. I’m left with the impression of Chief Justice Roberts sitting in conference with his mouth agape at his Brethren voting to let the President “get away with” such brazen illegality as this, and that only the Chief’s gentlemanly personality and concern for fostering comity amongst his colleagues compelled him to include the middle word of his concluding sentence, “I respectfully dissent.”
Justice Antonin Scalia has no such restraint of personality; his sputtering with outrage is palpable. Joined by his Brethren Roberts and Alito, Scalia’s principal dissent begins by noting that as a “real-world fact,” Israel controls the entirety of Jerusalem and intimates that legal and diplomatic statements eliding this “real-world fact” are but tissues and fictions. He makes note that the Zivotoskys consider recognition of Jerusalem as part of Israel a “matter of conscience,” hinting that Scalia might have been willing to allow individuals to opt for their passports to say either “Jerusalem, Israel” or just “Jerusalem” as a matter of their individual choice and suggesting that no reasonable person would see a governmental imprimatur on such a decision, that it is a matter of identity rather than of diplomacy. Like Justice Thomas, Scalia believes that if Congress can adopt a rule naturalizing Zivotofsky it can also adopt a rule regulating the paperwork which that rule is applied.
But that’s just him warming up. The core of his dissenting opinion is that while the President has the power of recognition, nothing in the text or structure of the Constitution, or any subsequent case law, indicates that this power is exclusive. Most powerfully, Scalia points to the Philippine Independence Act, by which Congress in 1934 directed President Franklin Roosevelt to devolve independence to the Philippines, which Scalia says by definition and overt language included an instruction to Roosevelt to recognize the Philippines as an independent nation. He goes on to point to the dispute of the PRC to hold sovereignty over Taiwan, another issue upon which Presidents of both parties have remained studiously, uniformly, and wisely silent; Scalia does not question this wisdom. But passports issued to people born in Taiwan indicate their birthplace as “China.” So too with UK sovereignty over Northern Ireland, a matter of some substantial contention in years past at least and perhaps still ongoing: a passport identifying a person’s birthplace as “Belfast” rather than “The United Kingdom” does not constitute a withholding or granting of diplomatic recognition of the sovereign status of that geographic territory.
Accusing the majority of reaching “a rule that is blatantly gerrymandered to the facts of this case,” Scalia notes that Congress has the ability to regulate customs and taxes, and that Congress has done so, treating goods originating in Jerusalem as taxed the same way as goods originating in Tel Aviv: for taxation purposes, Congress is entirely within its power to proclaim Jerusalem part of Israel. And, Scalia notes, the President is entirely free to make an announcement that while he is compelled by Congress to issue passports in a certain way, this does not constitute diplomatic recognition of Israeli sovereignty over Jerusalem. A President with “uncontrolled mastery of a vast share of the Nation’s foreign affairs,” Scalia says, “is not the chief magistrate under which the American People agreed to live when they adopted the national charter.” Dissent slip op., at 19. Congress gets to speak up — it too represents the voice and will of the self-governing American people. To Scalia, the interplay of Congress and President on these matters is the very heart of a Constitution setting forth a government of limited and divided powers.
Where Do We Stand Now?
So here’s how I see matters in the wake of today’s decision. First of all, if it weren’t Israel and Jerusalem at issue here, we wouldn’t be having this discussion; of all the various powers and states and international disputes in the world, it is likely that only a dispute about Jerusalem could twice have reached the Supreme Court for substantial legal rulings dividing power between and amongst the various branches of our government. In any other situation, the political nature of this question would be patently obvious and that would be that. In my personal opinion, Justice Breyer got it the rightest.
But Justice Breyer’s views did not command a majority today; Justice Kennedy’s did.
Which brings us to the diplomatic issues that are so very unique to the issue of who does, and who should, control Jerusalem, and what the U.S. government should do about a difference between “does” and “should.” To date, I believe that the only official, overt endorsement of lawful sovereignty over Jerusalem that the United States has signed off on is the 1947 U.N. resolution establishing Jerusalem as an international territory. Maybe I’m wrong about that, but today’s decision suggests to me that any Act of Congress, at least, is not legally effective to alter what appears to be an unbroken chain of actions and statements begun by President Truman and extending through to President Obama today, withholding recognition of Israeli sovereignty over Israel. While the U.S. works on a de facto basis closely the state of Israel (a close military ally), the status of Jerusalem remains a point of formal legal and diplomatic dispute between the nations, who have “agreed to disagree” about the legal status of Israel’s control of the holy city.
Now, the chances that the U.S. is going to eventually tell Israel that it must renounce its claim to at least part of Jerusalem is about zero as a matter of fact given the current and reasonably foreseeable future state of affairs. But it may be necessary to allow the present sort-of-Palestinian state, or some future state of Palestine, to also declare Jerusalem its capital and to exercise sovereignty over a portion of that city. Unthinkable to some, overtly obvious to others — and for today’s purposes, as yet undetermined for the Supreme Court. And the Court isn’t about to allow anyone, not even Congress, to tie the hands of the President in playing such a chit at the time and manner that the President deems best.
Justice Scalia is right that the “real-world fact” is that Israel controls the entire city of Jerusalem. But U.S. recognition of that fact, whether made, withheld, withdrawn, or modified, is a powerful diplomatic chit. It is a card that can be played in negotiating efforts to achieve peace. It is something that could in theory be used to precipitate or shrink from war. Things can change very dramatically, very quickly, in the Middle East. So the Supreme Court, as a whole, is not about to step in to something that restricts the ability of the President — and only the President, for unlike Congress, the White House has the suppleness of speed and freedom from the deliberative process to react to new events as they may occur — to play that chit as he sees fit.
With respect to another facet of the case, I must consider Menachem Zivotofsky himself. Now a young man either nearing or just past his bar mitzvah, Mr. Zivotofsky has to date lived his entire life at the center of a years-long legal struggle over the addition of a single word in a passport, a lawsuit twice before the Supreme Court and followed with alacrity by dozens if not hundreds of legal, political, diplomatic, and religious interest groups. For literally his entire life, he has been the focus of a high-profile lawsuit against the government. I will leave to the reader the task of speculating how that might have affected him psychologically, although of course neither he nor anyone else will ever be able to know any differently.
* For purposes of this case, the consular report of an American child born abroad was treated as identical to a passport; it had the same effect as a passport when the parents brought their child home to the U.S. and would govern any subsequent issuance of an actual passport for the child.
Image credit: wikimedia commons, official U.S. Supreme Court photograph.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.