More Mischief than Guidance: What Zivotofsky Says About the Supreme Court

Last year the Supreme Court, seized with a big constitutional question about foreign relations, feinted: Bond v. United States turned on rules of statutory interpretation rather than the constitutional balance between federalism and the treaty power. Fans of constitutional controversy, which centers attention on the Court in its self-assigned role as ultimate constitutional arbiter, may regret this move, although I do not. This time around, the Court faces the big constitutional issue head on. Yet Zivotofsky v. Kerry is about the Court itself as much as it is about foreign relations law.

Justice Kennedy’s majority opinion decides two basic issues. First, the power to recognize states, inferred from the express Article II powers to receive ambassadors, negotiate treaties, and nominate ambassadors, is exclusively the President’s. Second, exclusive means that Congress cannot encroach on that authority, even if the enacted law bears some relationship to a constitutional Congressional capacity. Of the two points, the second strikes me as having greater significance. But its lack of definition may suggest instead a porous balloon that ultimately collapses upon itself.

First, the link between recognition of an entity’s status as a state and determination of its borders (the latter is the question in Zivotofsky) seems direct enough. Everyday international law ties the status of statehood to a capacity to exercise sovereignty over some territory. President Truman’s initial decision not to recognize the sovereignty of any state over Jerusalem seems much more clearly within the nexus of attributes covered by recognition than, say, the claims settlement mechanism memorialized in the Litvinov Assignment that United States v. Pink bound up with FDR’s recognition of the Soviet Union and thus upheld against contrary New York law.

Norms of full disclosure require me to reveal that I worked on Zivotofsky on behalf of the United States. During my time in the State Department, the case came back to the district court following the D.C. Circuit’s ruling that Zivotofsky did have standing to challenge State’s passport policy. Skeptical about the political question doctrine, I supported the argument that the recognition power allowed the President to disregard Section 214(d), the statute that the Court today held unconstitutional. The analogy to Pink struck me then, as it does now, as strong. Whether Pink represents a high point in an era of foreign relations exceptionalism, one that now lies in the past and from which we have departed, did not concern me at the time. As a government lawyer, I felt comfortable defending my client (both the President and the United States) on this ground. Even now, to my ear the arguments of Chief Justice Roberts and Justice Scalia about why the statute has nothing to do with recognition of Israel as a state seem forced and unconvincing.

A much harder question (and one to which I did not pay much attention back in the day) is whether Congress has any power in the first place to adopt Section 214(d). Before oral argument, Jack quite nicely sketched out the argument against any such power. What is striking about Kennedy’s opinion is its rather blithe treatment of the question. It relies mostly on the “one voice” argument. As many have recognized, “one voice” restates a conclusion more than it makes a point. Almost always a unified executive will achieve some efficiencies that the muddle of legislative contest will lose. The issue should be whether the constitutional structure advances other goals besides expedience. Often it does.

At the end of the day, the majority’s argument (or at least its functional strand) turns on Kennedy’s assertion that “the purpose of the statute was to infringe on the recognition power.” Fine, if true. But purpose is a slippery move that depends more on prior beliefs than a reasoned chain of analysis. As Jack notes, the potential for “one voice” to back up executive rejections of legislative restraint remains worrisome. How are we to tell the difference between legislation that simply hems in the Executive in conducting foreign relations, and that which has hemming in as its purpose? Were I back in the Executive, I would try as hard as I could to collapse the two.

Far more persuasive, for me, is Justice Thomas’s review of potential sources of congressional authority. One may quarrel with his treatment of congressional power over passports and naturalization as well as the supposed residual Necessary and Proper Clause. He at least makes the effort to frame an argument. And if you buy into his position, then Scalia’s riposte ‒ that Thomas does not tell us what to do when legitimate exercises of Executive and congressional generate contradictory results ‒ misses its mark. If Congress lacked any constitutional basis for this law, then there is no conflict to resolve.

This brings me back to my claim that the case tells us more about the Court than foreign relations law. Our popular (high) culture makes much of the Court and its pronouncements, especially on constitutional questions. The major media outlets lead with the story. As I write this, seven hours after the event, the Washington Post and the New York Times feature the story at the top of their web sites, and the Wall Street Journal and CNN come close. The squishy center of the Court, which Kennedy embodies, seems to love the attention. But, as Zivotofsky illustrates, there is more mischief than guidance in what the Court says when it wrestles with hard constitutional questions. Notwithstanding Kennedy’s protestations about the limits of Curtiss-Wright, the opinion offers considerable comfort to defenders of the President in matters of foreign relations. One voice and bad congressional purpose can be trotted out almost anytime. Yet the Court can pivot easily in almost any case, finding a legitimate enactment where today it sees only perversity. There are trees here, but not forest.