Zivotofsky: A Failure of Judgment

    Zivotofsky v, Kerry provides an illustration of how the Supreme Court can make poor decisions.  The facts are well known: U.S. policy since 1948 has been to recognize Israel but treat Jerusalem as a city not under the sovereignty of any nation.  Congress enacted a law requiring the State Department, on request, to declare on passports that Israel is the place of birth of a person born to American citizens in Jerusalem.  
    When this case first came up to the Supreme Court the Court ruled that the issue was a justiciable controversy.  That was the first error.  For 225 years the nation has gotten along just fine without resolution of the locus or scope of the power to recognize foreign governments. There was no pressing reason to dive into this brier patch.  Better to have heeded Alexander Bickel’s advice that sometimes the best thing the Court can do is not decide.  To paraphrase Bickel: Was this an occasion where a decision on the merits was really necessary?
    But once in the thicket, the thorns dug in.  Perhaps the cleanest analysis was provided by Justice Thomas.  The Constitution distributes bits and pieces of the foreign affairs power to Congress and the President, leaving a zone of residual foreign affairs power that is not clearly assigned to either branch.  It makes sense to treat this zone as presumptively within the President’s authority, subject to the caveat that if Congress has an enumerated end to which its legislation is both necessary and proper, Congress may validly legislate.  But if there is no such authority, the President is free to act and congressional action is unauthorized.  Without power to regulate the notation of birthplaces on passports, Congress’s action was ultra vires.  End of discussion.
    The majority declared that the recognition power is exclusive to the President. By itself, that is not unreasonable, though historical circumstances such as Congress’s directive to the President to grant independence to the Philippines casts some doubt on this conclusion. The larger error was concluding that the scope of the recognition power includes the power to decide the extent of territorial sovereignty of governments that the U.S. recognizes, at least when it comes to birthplace designations in passports.  One must wonder what else might be ancillary to the recognition power.  Suppose that in connection with recognition of Iran the President pledges not to use military force if Iran breaches its international nuclear agreements, but upon such a breach Congress either declares war on Iran or authorizes the President to use military force.  Does Zivotofsky bar the Congress from taking such action?
    The dissent wasn’t much better.  The nation does need to speak with one voice on matters of diplomatic recognition, but it’s not overwhelming that it must be the President. Nor did the dissent make a persuasive case that Congress had authority to enact the law in the first place.      At least the majority repudiated the vast and overreaching claim of unilateral presidential authority that is grounded in Curtiss-Wright. But that is small compensation for a decision that need not have been made, and which carries the seed of extravagant presidential claims in the future.