The White House Can’t Accept Russia’s Annexation of Crimea Without Congress

As part of its push for an agreement to end the war in Ukraine, the Trump administration has reportedly put something on the table that once seemed unimaginable: formal de jure U.S. recognition of Russian sovereignty over Crimea, the Ukrainian territory that Russia seized by force and has occupied since 2014. And that’s not all. In exchange for a cessation of hostilities and certain unspecified security guarantees for Ukraine, among other terms, the United States would also accept unofficial de facto Russian control over those parts of Ukraine it has seized since its 2022 invasion and lift the dense thicket of related sanctions it’s imposed since 2014.

None of these proposals appear to have been socialized with Ukraine or European allies, who have openly rejected them thus far. Nor does Congress appear to have been meaningfully consulted, despite (or perhaps because of) strong bipartisan objections to such recognition in the past. The strong implication is that both recognition and related sanctions relief are terms that President Trump himself can deliver on his own authority. The legal reality, however, is far more complicated than the Trump administration acknowledges—something that may prove to be a fatal flaw in any peace agreement it may be able to negotiate.

To say that the United States recognizing Russian sovereignty over Crimea and other seized Ukrainian territories shocks the conscience would be an understatement. Russia’s covert occupation of Crimea in 2014 stands—alongside its overt 2022 invasion—as a direct affront to the foundational principle of the postwar international order: that one state may not use force to threaten another’s political independence or territorial integrity. For more than a decade, the United States has led the international community in condemning Russia’s aggression as a grave violation of international law. Accepting Crimea as a part of Russia now wouldn’t just be a dramatic reversal of this long standing, bipartisan U.S. policy and betrayal of the broader principle behind it, but something that much of the international community is likely to view as a violation of international law in and of itself. For this reason, the United States is likely to stand alone on this point, except for the handful of traditional U.S. rivals and Russian client states that have already acquiesced to the results of Russia’s unlawful aggression. 

Importantly, recognition of Russian sovereignty over Crimea is also a step that Congress has vocally opposed, under Republican and Democratic leadership alike. Indeed, Secretary of State Marco Rubio was one of the leading advocates for this position during his time in the Senate. Nor has Congress been all talk. Since 2018, it has included restrictions on the use of Defense Department funds for “any activity that recognizes the sovereignty of the Russian Federation over territory internationally recognized to be the sovereign territory of Ukraine, including Crimea[,]” in annual defense legislation. Congress has also mandated congressional review before certain sanctions on Russia over its occupation of Ukrainian territory can be lifted. While neither restriction is airtight for reasons discussed below, they together underscore the substantial reservations that many in Congress—including many of President Trump’s fellow Republicans—are likely to feel about what the Trump administration has proposed as well as the obstacles they have already imposed (and to which they may yet add).

The Trump administration, however, may not see congressional opposition as much of a concern. Since its landmark 2015 decision in the matter of Zivotofsky v. Kerry, the Supreme Court has held that “the power to recognize or decline to recognize a foreign state and its territorial bounds resides in the President alone” and thus beyond congressional interference. Based on this holding, the first Trump administration indicated that it would only comply with statutory restrictions on the recognition of Russian sovereignty over Crimea and other territories to the extent they are “consistent with the President’s exclusive constitutional authorities…including the authorit[y] to determine the terms upon which recognition is given to foreign sovereigns”—in other words, perhaps not at all. Now the second Trump administration may be planning to make good on this promise.

But as in other areas, the Trump administration’s confidence in the president’s broad authority over foreign affairs may be misplaced. While Zivotofsky unequivocally gives the president the exclusive power over recognition, this authority is narrower than such an assessment suggests—and does far less to debilitate Congress from opposing the president’s acceptance of Russian aggression, if it so desires.

The dispute in Zivotofsky centered on a statute that directed the executive branch to list “Israel” as the place of birth in U.S. passports and certain other official documentation for individuals born in Jerusalem upon their request. As this was in tension with the longstanding U.S. position that Jerusalem was disputed territory (a position that Trump himself later reversed), both the George W. Bush and Obama administrations refused to comply.

The Supreme Court ultimately ruled in the executive branch’s favor on the grounds that the president has the exclusive authority to make recognition determinations. But in concluding that the president has the exclusive constitutional authority to recognize foreign states and their boundaries, it took pains to make clear that this power was itself “quite narrow[.]” “The Executive’s exclusive power extends no further than his formal recognition determination[,]” Justice Kennedy wrote for the 5-4 majority. He later elaborated, “[a]lthough the President alone effects the formal act of recognition, Congress' powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself.”

Notably, those justices who did not join the majority largely did so on the grounds that even this view of the president’s recognition power was too broad. Justice Scalia objected that the majority’s vision of the recognition power risked giving the president “uncontrolled mastery of a vast share of the Nation’s foreign affairs.” Chief Justice Roberts and Justice Alito accused the majority of an “error on a basic question of separation of powers” in extending the exclusive recognition power so far. Only Justice Thomas seemed open to the possibility of broader claims of presidential authority, on somewhat different grounds—and he was still unwilling to go as far as the majority. In short, while the majority accepted that the president has the sole authority to determine which foreign states and boundaries the United States officially recognizes, no justice—and certainly not a majority—contended that this allows the president to dictate the broader contours of U.S. law and policy.  

Even less clear is whether Zivotofsky bears at all on the Trump administration’s other major recognition-related bargaining chip: unofficial “de facto” recognition of Russian control over the Ukrainian territory it has seized and controlled since its 2022 invasion. Whereas formal de jure recognition suggests full and official acceptance that a government exercises sovereignty over a given territory as part of a state, de facto recognition generally refers to a more limited acknowledgement that a regime exercises effective control over a territory and thus must be treated as its government for certain purposes. Many leading authorities do not even consider de facto recognition to be a sort of recognition at all, but instead view it as a category of relations that exists in the absence of recognition.

Elsewhere, the Trump administration has suggested that the president's exclusive recognition power may extend to de facto recognition as well. But Zivotofsky only addresses its holding regarding the exclusive recognition power towards “formal” recognition of the sort “effected by an express written or oral declaration” or “ implied…by concluding a bilateral treaty or by sending or receiving diplomatic agents”---all traditional indicators of de jure, not de facto, recognition. Hence, it’s not clear that the exclusive recognition power recognized in Zivotofsky even reaches so-called de facto recognition. Absent such a holding, courts have traditionally given the views of the executive branch “considerable weight” in how to engage unrecognized or de facto regimes, but have remained “free to draw for themselves its legal consequences” in specific disputes. Similarly, Congress has been free to regulate U.S. relations with such entities through legislation like the Taiwan Relations Act, which—as a matter of statute—gives an unrecognized regime treatment nearly equivalent to that of a recognized foreign government.

Viewing the president’s exclusive recognition power through this lens helps to make clear which of the concessions to Russia that the Trump administration has put on the table it can and can’t deliver on without Congress. Zivotofsky confirms that, no matter what legislation Congress may enact, the President can de jure recognize Crimea as a part of Russia on behalf of the United States and ensure that this determination is accurately reflected in official U.S. documentation and diplomatic representations—representations that are likely to be taken as official statements of U.S. policy by foreign governments under international law. A separate line of cases also supports the conclusion that President Trump can enter into an executive agreement in relation to such recognition that sets additional terms settling claims and otherwise exercising his separate authorities that are enforceable as a matter of U.S. domestic law, most notably on the states. But any suggestion that such recognition or any related agreement can supersede restrictions that Congress may impose on how the United States engages with Crimea and other territories using its own substantial constitutional authorities is questionable at best. As Justice Kennedy himself made clear in Zivotofsky, “[f]ormal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties”—all measures that “require action by the Senate or the whole Congress.” 

This has clear ramifications for the restrictions Congress has already enacted into statute. Insofar as it is read to restrict the actual act of recognizing sovereignty over Crimea and related official or diplomatic communications, the limitation on Defense Department spending is likely to be unconstitutional. But it arguably goes further in limiting “any activity” that recognizes Russian sovereignty over Crimea and other Ukrainian territories, a restriction that could impede various U.S. military and Defense Department activities relating to or in the vicinity of those territories that might rely in part on purported Russian sovereignty—for example, to secure consent for military overflights or the transit of adjacent waterways. The Trump administration may have constitutional arguments relating to the president’s authority as commander in chief as to why some such restrictions may be unconstitutional infringements on his ability to direct U.S. military forces. And it’s unclear who might have standing to judicially enforce these restrictions if the executive branch were to disregard them. But at a minimum, members of Congress could certainly put pressure on the Defense Department over any non-compliance. That said, the restriction itself is subject to a waiver by the secretary of defense and secretary of state upon a determination that a waiver is in the national interests and submission of a justification to relevant congressional committees, an option the Trump administration seems likely to exercise. 

Congressional review of sanctions rescissions may present a somewhat bigger problem. There is little doubt that Congress can mandate the imposition of sanctions pursuant to its constitutional authority to regulate foreign commerce and Zivotofsky is quite clear that exercises of this authority are not limited by the recognition power. Nor is there likely to be a shortage of potential plaintiffs—Ukrainian dual nationals, property owners in disputed territories, business competitors of unsanctioned entities—with the standing necessary to challenge an unlawful rescission in the courts. In this sense, if Congress wanted to restrict trade or impose other economic sanctions on Crimea, it could still do so even if President Trump moves forward with recognizing it as part of Russia.

That said, Congress has not yet gone so far. As it currently stands, the review provisions Congress has enacted limit the president’s ability to immediately rescind a huge swathe of the sanctions currently on Russia, including many relating to Crimea and other seized territories. But they only delay that rescission by 30 to 60 days (plus additional time to debate related measures where needed), unless Congress can enact a joint resolution to block it entirely through certain specified expedited procedures. And such joint resolutions are subject to a presidential veto, in which case they would need the support of two-thirds of both chambers of Congress to become law—an extraordinarily high threshold that seems unlikely to be met given the current composition of Congress. Hence, while the recognition power does not allow the Trump administration to evade these procedures, they seem more likely to delay than stop the rescission of sanctions on Russia. And they may force President Trump to overcome bipartisan opposition in both chambers of Congress by exercising his veto—a development that may well prove politically costly, but is not legally prohibitive.

The real concern, however, is not what Congress has already enacted, but what it may enact in the future. If even a narrow majority in Congress views the recognition of Russian sovereignty over Crimea as unconscionable or unlawful, they may well enact stronger statutory restrictions in the future. And by incorporating them into must-pass legislation (like annual defense or appropriations legislation), Congress can also make it difficult for President Trump to veto them. This outcome may seem unlikely in the current Congress given Republican control of both the House and Senate, particularly as leadership is often able to stymie legislative efforts, even where they would have support from a majority of members if brought to a vote. But does the same conclusion hold for a post-2026 Congress, where Democrats seem likely to control the House—particularly as Senate Republicans are the ones most likely to object to the president’s maneuver? No one knows better than Secretary Rubio how deep Senate reservations over Russian aggression run, but past efforts suggest it may be quite deep. And that is before one even considers whether the next U.S. president is likely to feel obligated to continue a recognition policy that is anathema to traditional U.S. allies and flies in the face of both international law and longstanding U.S. policy. 

Then again, there is also the perennial possibility that Congress does nothing and simply acquiesces to the Trump administration’s actions, in spite of whatever reservations it may have. If this occurs, there will be the understandable temptation to shift blame for any negative consequences to the White House. But the public should not be fooled: in spite of Zivotofsky, Congress has the power to resist. And in choosing not to do so, it shares responsibility for whatever may come.

Bringing an end to a heated war is a difficult task that inevitably involves difficult tradeoffs. The Trump administration deserves some credit for not just trying, but making it a policy priority. But the peace plan that’s been put forward reflects many of the pathologies that have already come to define the second Trump administration’s foreign policy: more favorable to rivals than allies, spiteful of international law and the rights of weaker states, and overly reliant on unrealistically broad claims of presidential authority. If such a concession were truly necessary, a better route would have been to socialize it with Congress and relevant allies so as to build support beforehand—or, better yet, make potential normalization the end result of a process that takes due account of other legal and policy interests and can help make sure that Russia holds up its own end of the bargain over time.

By instead seeking to make such a dramatic shift all at once, supported by little more than presidential diktat, the Trump administration may be setting itself up for failure. Or perhaps worse yet, success at forcing a peace built on a flawed foundation that will not hold.