Why Zivotofsky Is a Significant Victory for the Executive Branch

The Supreme Court in Zivotofksy held that the President can disregard a statute that requires him to designate “Israel” on passports of U.S. citizens born in Jerusalem because the statute (Section 214 of the 2003 Foreign Relations Authorization Act) infringes on the President’s exclusive power to recognize foreign sovereigns.

It is very unusual for the Court to give the President a victory in defiance of a congressional restriction, a context that Justice Jackson described in his famous Youngstown concurrence as the “lowest ebb” of presidential power. And it is literally unprecedented for the Court to do so in the foreign relations context, as the Chief Justice noted in the first sentence of his dissent. This is one important feature of the case.

One might think that the holding of the case lacks broader significance. Recognition of foreign sovereigns is a discrete context and Justice Kennedy purported to limit the holding to that context. He said, for example:

The Secretary [of State] now urges the Court to define the executive power over foreign relations in even broader terms. He contends that under the Court’s precedent the President has “exclusive authority to conduct diplomatic relations,” along with “the bulk of foreign-affairs powers.” In support of his submission that the President has broad, undefined powers over foreign affairs, the Secretary quotes United States v. Curtiss-Wright Export Corp., which described the President as “the sole organ of the federal government in the field of international relations.” This Court declines to acknowledge that unbounded power. A formulation broader than the rule that the President alone determines what nations to formally recognize as legitimate—and that he consequently controls his statements on matters of recognition—presents different issues and is unnecessary to the resolution of this case.

However, as Justice Scalia noted, the reasoning in the opinion—especially its “functional considerations” in support of the exclusive recognition power—sweeps beyond the holding. Despite his pooh-poohing of Curtiss-Wright, Justice Kennedy talks about the importance in the recognition context of “unity, of the Nation speaking with “one voice,” of “decision, activity, secrecy, and dispatch,” and of “decisive, unequivocal action”—all classic functional advantages of Executive power in foreign relations. Importantly, in recognizing these functional arguments as a basis for presidential exclusivity, Kennedy nowhere limits the analysis to the recognition context. Rather, he says that the holding does not extend beyond recognition, and that the Court does not acknowledge a broader power. But he does not rule out broader applicability. But of course the functional arguments can be applied much more broadly. And now we know that they can support presidential exclusivity.

Moreover, Kennedy spoke in broad terms in explaining why Section 214 contradicts presidential power:

If Congress may not pass a law, speaking in its own voice, that effects formal recognition, then it follows that it may not force the President himself to contradict his earlier statement. That congressional command would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.

This last sentence is unadulterated Curtiss-Wright-ism. But now, one needn’t cite the discredited Curtiss-Wright opinion for Curtiss-Wright-ism; one can cite Zivotofsky.

One might of course argue that Zivotofsky embeds Curtiss-Wright-ism in a recognition context, and that future courts will so limit the analysis. But—and here is the real import of the decision—courts are not the only venue where Zivotofsky will be deployed. Until today the Executive branch never possessed a judicial precedent that embraced its many functional arguments for presidential primacy in a decision that holds that the president can disregard a foreign affairs statute. Now it does possess such a precedent—a precedent with broad reasoning and a good deal of pro-Executive dicta. This precedent thus gives executive branch lawyers much more powerful ammunition than before in deciding whether to disregard foreign relations statutes in contexts that never reach courts for review.

These are the consequences of Zivtofsky. But what of the merits—who was right and who was wrong about the constitutionality of the passport statute? I am still uncertain about that. Suffice it to say that after reading 93 pages of Supreme Court opinions on the topic, I continue to believe that Zivotofsky is a case where we lack (in Jackson’s words) “really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves.”