The Role of Foreign Perceptions in <em>Zivotofsky</em>

One of the noteworthy disagreements in Zivotofsky concerns the significance of foreign perceptions of U.S. law.

The majority suggested the risk of misperception is relevant as a type of functionalist consideration: Pointing to evidence that § 214(d) drew objections from Palestine and protests in the Gaza Strip, and invoking a need for “one voice” in foreign affairs, Justice Kennedy concluded that the statute is unconstitutional not simply because it purports to compel the President to issue statements that contradict his policy on the status of Jerusalem, but also because those statements would mislead foreign audiences to think that U.S. recognition policy has changed. Such equivocation is unacceptable because foreign countries “need to know . . . whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights.”

At least two Justices had a different view. Treating foreign perceptions as essentially irrelevant, Justice Roberts criticized the majority for “subject[ing] a duly enacted statute to an international heckler’s veto.” Justice Scalia insisted the statute’s “symbolic support for Israel’s territorial claim . . . makes no difference as a matter of constitutional law,” even if it has “tremendous significance as a matter of international diplomacy.”

The disagreement raises a number of empirical and theoretical questions that are worth considering:

(1) For the majority, whose potential misperceptions substantiate the need for one voice? Foreign ministries? Foreign governments? Foreign publics? All of the above?

The opinion doesn’t squarely address this point, but mentions that “foreign countries” need clarity on recognition matters and cites evidence of official and public reactions to the statute in Palestine. I take that to suggest a concern for both governmental and popular understandings.

Yet it’s not obvious the Court should care about anything other than foreign official misperceptions. Most foreigners are not lawyers, let alone comparative lawyers with knowledge about the U.S. legal system. Most foreigners don’t follow or possess any particular interest in U.S. legal developments. Most, moreover, are dependent on foreign media outlets of variable quality, and over which the U.S. government has no influence. The result is that even basic aspects of U.S. law are often unknown or misunderstood abroad. (Consider, for example, this 2008 poll showing that more than 50% of the United Kingdom presumed polygamy to be legal here.) I’m having a hard time seeing why the courts should give any weight to popular perceptions of such questionable origins, particularly in addressing questions of constitutional law. If the one voice doctrine is justified, it has to be for reasons other than the idea that a congressional voice creates a risk of misunderstanding among public audiences that are often fundamentally uninformed.

(2) Did § 214(d) cause misunderstanding among foreign officials?

I probably haven’t seen all of the evidence, and I don’t purport to be an expert on the Middle East, but the two sources cited by the majority focus on the public response in Palestine and other parts of the region. The first source, a diplomatic cable, reported that the public’s “strong, emotional reactions reflect to a large degree the simplistic and sensationalist way that regional and local Arab media have portrayed the law.” The second source, a newspaper article, reported that Palestinians threw rocks to protest “U.S. legislation that urged recognition of Jerusalem as Israel’s capital.”

What’s missing is clear evidence that Palestinian officials misinterpreted the statute. The cable quoted public denunciations from various government sources, including one objecting that the statute “undermines the role of the U.S. as a sponsor of the peace process.” But that doesn’t necessarily show an official misconception. It’s one thing to object, but another to object on the specific view that the law effected a change in recognition policy. After all, many kinds of pro-Israel legislation would presumably generate official statements of disapproval; it strikes me as noteworthy that the sources contain no quotes directly showing an official misinterpretation. As if to underscore the point, a second cable not cited by the majority also reported widespread misunderstanding in the region, but only described it as a problem among the “media and public.” And both cables show that U.S. diplomats, presumably in contact with Palestinian officials, made efforts to clarify the statute’s effect.

While again acknowledging that I don’t have all the facts, it’s also a little hard to believe that Palestinian officials would misinterpret the significance of the passports going forward. With the majority conceding the statute doesn’t formally change U.S. policy, all three branches of the federal government now agree on that point. To nevertheless anticipate that foreign officials will read the passports as evidence of a change, we’d have to assume that the uniform message of the President, Congress, and the Supreme Court is somehow lost in translation. But U.S. diplomats are there to ensure it isn’t. And why would a foreign government be sensitive to the issuance of the passports but not the official interpretation of their significance?

(3) Is foreign official misperception of U.S. law a common problem?

I don’t know the answer, but I’ll venture three ideas: First, there’s probably a spectrum of governments ranging from the savvy to the uninformed. Due to exposure and practical necessity, those that work with the United States frequently and on a wide range of issues are likely to possess a more sophisticated understanding. Likewise for governments that share a common law tradition or similar political system, both of which probably make it easier to appreciate the background assumptions and underlying values of U.S. law. Second, the sophistication of foreign understandings has probably increased since the mid-twentieth century, as the advent of American hegemony magnified the importance of U.S. legal knowledge, as globalization improved foreign access to U.S. sources, and as inter-governmental contacts expanded in volume and variety to address proliferating global challenges. Finally, foreign government officials—particularly those with diplomatic responsibilities—are likely to be more sophisticated in their understanding than foreign publics.

If there’s something to these ideas, then we might reasonably think that the risk of misperception varies depending on the identity of the implicated governments, with those that are more sophisticated being less prone to error and better able to appreciate the nuances in U.S. law. We might also anticipate that concerns about misperception should generally receive less weight now than they might have in the past, and that they should be less acute with respect to foreign official understandings of U.S. law. From this perspective, the problem with the majority reasoning is that it creates a categorical rule in favor of the executive on the basis of a risk that may be only occasional.

(4) Is the mere risk of misperception enough, or must there be evidence that misperception has occurred?

The majority seems to view risk alone as sufficient by focusing on the contradiction that would arise if the President were forced to issue the passports—the passports “would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”

(5) How is a court to determine that a risk of misperception exists?

Although the majority cited a newspaper article in discussing the foreign response to § 214(d), the primary basis for the anticipated misunderstanding appears to be deference to the judgment of the Secretary of State, who emphasized the danger of diplomatic repercussions in the briefing and provided the cables that described hostile reactions from Palestinians. It’s not uncommon for courts to defer to executive representations about the foreign policy consequences of U.S. law, but the decision to do so here seems noteworthy for the simple reason that this is a case about the lowest ebb of executive power, where the President’s claims must be “scrutinized with caution.” Although I’m not sure there’s an alternative, there seems to be a tension between fact deference and legal scrutiny; a President with a relatively free hand to shape the Court’s view of what will happen is one with a capacity to heavily influence the disposition of the legal argument.

Ryan Scoville is an assistant professor at Marquette University Law School, where he teaches and writes in the areas of international and U.S. foreign relations law. Prior to joining the law school, he worked as a litigation associate for an international law firm in Tokyo, and served as a law clerk for Judge Milan D. Smith, Jr. of the U.S. Court of Appeals for the Ninth Circuit and Judge Neil V. Wake of the U.S. District Court for the District of Arizona. He also worked briefly at the Arms Control Association and the Defense Department's Office of the General Counsel (International Affairs).