George III or George Washington?

Lawyer friends and colleagues (and others interested), I'm wondering what you think of Zivotofsky, the Jerusalem passport case just decided by the Supreme Court. It has received quite a bit of attention, though perhaps mostly because it concerns that volatile region, Israel/Palestine. Even so, I'm always excited by cases concerning foreign affairs powers. For those unfamiliar, a brief summary of the facts: Z was born to U.S. citizens living in Jerusalem. His mother asked American Embassy officials to list his place of birth as "Israel" on his passport pursuant to a statute, Foreign Relations Authorization Act 214(d). That statute states that U.S. citizens born in Jerusalem may request the place of birth be recorded as Israel. The Embassy officials refused, citing the Executive branch's longstanding position that the U.S. does not recognize any country as having sovereignty over Jerusalem. Z's parents brought suit, seeking to enforce 214(d). The Supreme Court affirmed the DC Circuit, holding that the President has exclusive power to grant formal recognition to a foreign sovereign and thus Section 214(d) is unconstitutional.

I admit to having a broad view of the scope of Presidential foreign affairs powers (sole organ doctrine), but was not at all convinced by the majority's argument in this case, which is framed as a debate about recognition (recognition is a sovereign's official acceptance of a status under international law). The argument is that 214(d) requires the Secretary of State to issue official documents implying that Jerusalem is part of Israel and that foreign observers will interpret this as altering the U.S. policy of neutrality toward Jerusalem. This argument based primarily on perception seems quite overblown, and I agree with Justice Scalia in his dissent: "Finding recognition in this provision is rather like finding admission to the Union in a provision that treats American Samoa as a state for purposes of a federal highway safety program. . ." Further, the law "displays symbolic support for Israel's territorial claim. That symbolism may have tremendous significance as a matter of international diplomacy, but it makes no difference as a matter of constitutional law." In short, recording Israel instead of Jerusalem as the place of birth in an individual's passport does not amount to a change in U.S. policy toward Jerusalem. To quote the Chief Justice, "214(d) simply gives an American citizen born in Jerusalem the option to designate his place of birth as Israel 'for purposes of' passports and other documents." The majority's reliance on the recognition power and foreign perception in this instance is rather puzzling.

Given Justice Jackson's firmly established tripartite structure in Youngstown, I also found it quite striking that the Court upheld an Executive rebuke of an express legislative mandate. "When the President takes measures incompatible with the expressed or implied will of Congress. . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."  We are clearly in zone three, and I think the argument that the Executive powers at issue here are not "conclusive and preclusive" is convincing. From CJR's dissent, "At the time of the founding there was no reason to view the reception clause as a source of discretionary authority for the President." On the other hand, if you are convinced by Justice Thomas's argument for the "residual" foreign affairs powers of the Executive by way of the Article II Vesting Clause, then perhaps this makes more sense.

In the dissent, Justice Scalia rejects the Court's functional considerations (the Nation must speak with one voice, etc) and says, "Functionalism of the sort the Court practices today will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty." He ends his opinion with a jab at Justice Thomas, "Whereas the Court’s analysis threatens congressional power over foreign affairs with gradual erosion, the concurrence’s approach shatters it in one stroke. . . [and] produces a presidency more reminiscent of George III than George Washington." And the new rule the decision announces with respect to exclusive executive power is quite dramatic.

Justice Thomas and Scalia's dueling opinions were both interesting and entertaining, and I will consider them more closely when time allows. To my mind, the legal issues in this case are open-and-shut, though I'd be interested to hear other opinions. For those of you reading from a non-law background, and particularly if you do not live in the United States, how do you see the issue? Is the designation of "Israel" in a Jerusalem-born U.S. citizen's passport problematic?

Finally, I thought this take from one of my law professors was very interesting ("One can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so").