ArtII.S1.C1.6 Zivotofsky and Foreign Affairs Power

Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

The Supreme Court’s decision in Zivotofsky v. Kerry appears to be the first instance in which the Court held that an act of Congress unconstitutionally infringed upon a foreign affairs power of the President.1 The case concerned a legislative enactment requiring the Secretary of State to identity a Jerusalem-born U.S. citizen’s place of birth as “Israel” on his passport if requested by the citizen or his legal guardian.2

, § 214(d), 116 Stat. 1350, 1366 (2002). The State Department had declined to follow this statutory command, citing longstanding executive policy of declining to recognize any country’s sovereignty over the city of Jerusalem.3 It argued the statute impermissibly intruded upon the President’s constitutional authority over the recognition of foreign nations and their territorial bounds, and attempted to compel “the President to contradict his recognition position regarding Jerusalem in official communications with foreign sovereigns.” 4

The Zivotofsky Court evaluated the permissibility of the State Department’s non-adherence to a statutory command using the framework established by Justice Jackson’s concurring opinion in Youngstown, under which executive action taken in contravention of a legislative enactment will only be sustained if the President’s asserted power is both “exclusive” and “conclusive” on the matter.5 The Constitution does not specifically identify the recognition of foreign governments among either Congress’s or the President’s enumerated powers. But in an opinion that employed multiple modes of constitutional interpretation, the Court concluded that the Constitution not only conferred recognition power to the President, but also that this power was not shared with Congress.

The Court’s analysis of recognition began with an examination of “the text and structure of the Constitution,” which it construed as reflecting the Founders’ understanding that the recognition power was exercised by the President.6 Much of the Court’s discussion of the textual basis for the recognition power focused on the President’s responsibility under the Reception Clause to “receive Ambassadors and other public Ministers.” 7 At the time of the founding, the Court reasoned, receiving ambassadors of a foreign government was tantamount to recognizing the foreign entity’s sovereign claims, and it was logical to infer “a Clause directing the President alone to receive ambassadors” as “being understood to acknowledge his power to recognize other nations.” 8 In addition to the Reception Clause, the Zivotofsky Court identified additional Article II provisions as providing support for the inference that the President retains the recognition power,9 including the President’s power to “make Treaties” with the advice and consent of the Senate,10 and to appoint ambassadors and other ministers and consuls with Senate approval.11

The Zivotofsky Court emphasized “functional considerations” supporting the Executive’s claims of exclusive authority over recognition,12 stating that recognition is a matter on which the United States must “speak with . . . one voice,” 13 and the executive branch is better suited than Congress to exercise this power for several reasons, including its “characteristic of unity at all times,” as well as its ability to engage in “delicate and often secret diplomatic contacts that may lead to a decision on recognition” and “take the decisive, unequivocal action necessary to recognize other states at international law.” 14

The Court also concluded that historical practice and prior jurisprudence gave credence to the President’s unilateral exercise of the recognition power. Here, the Court acknowledged that the historical record did not provide unequivocal support for this view, but characterized “the weight” of historical evidence as reflecting an understanding that the President’s power over recognition is exclusive.15 Although the Executive had consistently claimed unilateral recognition authority from the Washington Administration onward, and Congress had generally acquiesced to the President’s exercise of such authority, there were instances in which Congress also played a role in matters of recognition. But the Zivotofsky Court observed that in all earlier instances, congressional action was consistent with, and deferential to, the President’s recognition policy, and the Court characterized prior congressional involvement as indicating “no more than that some Presidents have chosen to cooperate with Congress, not that Congress itself has exercised the recognition power.” 16 The Court also stated that a “fair reading” of its prior jurisprudence demonstrated a longstanding understanding of the recognition power as an executive function, notwithstanding “some isolated statements” in those cases that might have suggested a congressional role.17

Having determined that the Constitution assigns the President with exclusive authority over recognition of foreign sovereigns, the Zivotofsky Court ruled that the statutory directive that the State Department honor passport requests of Jerusalem-born U.S. citizens to have their birthplace identified as “Israel” was an impermissible intrusion on the President’s recognition authority. According to the Court, Congress’s authority to regulate the issuance of passports, though wide in scope, may not be exercised in a manner intended to compel the Executive “to contradict an earlier recognition determination in an official document of the Executive Branch” that is addressed to foreign powers.18

While the Zivotofsky decision establishes that the recognition power belongs exclusively to the President, its relevance to other foreign affairs issues remains unclear. The opinion applied a functionalist approach in assessing the exclusivity of executive power on the issue of recognition, but did not opine on whether this approach was appropriate for resolving other inter-branch disputes concerning the allocation of constitutional authority in the field of foreign affairs. The Zivotofsky Court also declined to endorse the Executive’s broader claim of exclusive or preeminent presidential authority over foreign relations, and it appeared to minimize the reach of some of the Court’s earlier statements in Curtiss-Wright19 regarding the expansive scope of the President’s foreign affairs power.20 The Court also repeatedly noted Congress’s ample power to legislate on foreign affairs, including on matters that precede and follow from the President’s act of foreign recognition and in ways that could render recognition a “hollow act.” 21 For example, Congress could institute a trade embargo, declare war upon a foreign government that the President had recognized, or decline to appropriate funds for an embassy in that country. While all of these actions could potentially be employed by the legislative branch to express opposition to executive policy, they would not impermissibly interfere with the President’s recognition power.22

Zivotofsky v. Kerry, 576 U.S. 1 (2015). It appears that in every prior instance where the Supreme Court considered executive action in the field of foreign affairs that conflicted with the requirements of a federal statute, the Court had ruled the executive action invalid. See id. at 62 (Roberts, C.J., dissenting) ( “For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs.” ); Medellin v. Texas, 552 U.S. 491 (2008) (President could not direct state courts to reconsider cases barred from further review by state and federal procedural rules in order to implement requirements flowing from a ratified U.S. treaty that was not self-executing, as legislative authorization from Congress was required); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military tribunals convened by presidential order did not comply with the Uniform Code of Military Justice); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804) (upholding damage award to owners of U.S. merchant ship seized during quasi-war with France, when Congress had not authorized such seizures). back
Foreign Relations Authorization Act, Fiscal Year 2003, Pub L. No.
, § 214(d), 116 Stat. 1350, 1366 (2002)
. back
Zivotofsky, at 6–7. The State Department’s Foreign Affairs Manual generally provides that in issuing passports to U.S. citizens born abroad, the passport shall identify the country presently exercising sovereignty over the citizen’s birth location. 7 Foreign Affairs Manual § 1330 Appendix D (2008). The Manual provides that employees should “write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem.” Id. at § 1360 Appendix D. back
Zivotofsky, 576 U.S. at 11–12 (quoting Brief from Respondent at 48). back
Id. at 10 (quoting Youngstown Sheet & Tube Co., 343 U.S. at 637–38 (1952) (Jackson, J., concurring)). back
Id. at 10–13. back
U.S. Const. art. II, § 3. Zivotofsky, 576 U.S. at 12. back
Zivotofsky, 576 U.S. at 12–13. The Court observed that records of the Constitutional Convention were largely silent on the recognition power, but that contemporary writings by prominent international legal scholars identified the act of receiving ambassadors as the virtual equivalent of recognizing the sovereignty of the sending state. Id. at 12. back
Justice Thomas, writing separately and concurring in part with the majority’s judgment, would have located the primary source of the President’s recognition power as the Vesting Clause. Id. at 31–32 (Thomas, J., concurring and dissenting in part with the Court’s judgment). The controlling five-Justice opinion declined to reach the issue of whether the Vesting Clause provided such support. Id. at 13–14 (majority opinion). back
U.S. Const. art. II, § 2, cl. 2. back
Id. back
Zivotofsky, 576 U.S. at 13. back
Id. at 14 (quoting Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003) and Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 381 (2000)). back
Id. back
Id. at 22–23. back
Id. The Court observed that in no prior instance had Congress enacted a statute “contrary to the President’s formal and considered statement concerning recognition.” Id. at 24 (citing Zivotofsky v. Secretary of State, 725 F.3d 197, 203, 221 (D.C. Cir. 2013) (Tatel, J., concurring)). back
See id. at 17. The Court observed that earlier rulings touching on the recognition power had dealt with the division of power between the judicial and political branches of the federal government, or between the federal government and the states. Id. at 17–18 (citing Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) (involving the application of the act of state doctrine to the government of Cuba and stating that “[p]olitical recognition is exclusively a function of the Executive” ); United States v. Pink, 315 U.S. 203 (1942) (concerning effect of executive agreement involving the recognition of the Soviet Union and settlement of claims disputes upon state law); United States v. Belmont, 301 U.S. 324 (1937) (similar to Pink); Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839) (ruling that an executive determination concerning foreign sovereign claims to the Falkland Islands was conclusive upon the judiciary)). back
See id. at 31. The Court approvingly cited its description in Urtetiqui v. D’Arcy, 34 U.S. (9 Pet.) 692 (1835), of a passport as being, “from its nature and object . . . addressed to foreign powers.” See Zivotofsky, at 30. back
See United States v. Curtiss-Wright Export Co., 299 U.S. 304 (1936). For further discussion of this case, see supra ArtII.S1.C1.4 Myers, Curtiss-Wright, and Youngstown. back
The majority opinion observed that Curtiss-Wright had considered the constitutionality of a congressional delegation of power to the President, and that its description of the Executive as the sole organ of foreign affairs was not essential to its holding in the case. Zivotofsky, at 20–21. back
Id. at 15–16. back
Id. at 15–16, 2095. back