M.B.Z. v. Clinton: Getting to the Merits on the Recognition Power

Robert Reinstein is Clifford Scott Green Professor of Law at Temple University Law School and the author of Executive Power and the Law of Nations in the Washington Administration, which addresses the early history of the recognition power.

M.B.Z. v. Clinton is the first case in which there is an apparent conflict between an act of Congress and the President’s authority to recognize a foreign state or government.

The Petitioner and the Solicitor General each argued that the Court did not have to resolve this conflict on the merits.  According to the Petitioner, this case involves a mere passport law and not represent a conflict over foreign policy.  That view did not appear to impress any of the Justices.  The Solicitor General defended, albeit weakly, the D.C. Circuit’s opinion that this was a political question.  That view also did not appear to gain any traction because it rests on the proposition that the recognition power is textually committed to the President – which, if correct, would represent a decision on the merits.  Finally, Justice Kagan suggested a way to avoid the more momentous issues at stake by asking the Petitioner’s lawyer how the statute was constitutional in the first place.  His answer was not very helpful, relying on the immigration power to support passport regulations.  But Justice Kagan observed that the provision at issue has nothing to do with immigration or ordinary passport regulation – it appears to be a foreign policy decision that  Jerusalem was part of Israel.    The Petitioner could have relied on Congress’ power to regulate foreign commerce, where it frequently makes foreign policy decisions that are binding on the President, but he did not.

Historically, this case is unique.  On the one hand, the Solicitor General is correct that Congress has never recognized a foreign government, nor has it ever directed the President to do so.  However, as Justice Alito observed, the President has never recognized a foreign government over the objection of Congress.  The cases in which the Supreme Court stated that recognition is exclusively an Executive function involved the relationship of the courts to the political branches, not an internal conflict within the political branches.  And there are statements in early Supreme Court opinions (including by Marshall speaking for the Court in 1818) that the recognition power belongs jointly to Congress and the President.

If the Supreme Court applies the framework established in Justice Jackson’s concurring opinion in Youngstown, the President’s power would be at its “lowest ebb” because he is acting contrary to the expressed will of Congress.  This means  that the President can prevail only if the Executive recognition power is exclusive.

The Solicitor General argued that the provision in Art. II, § 3, that the President “shall receive Ambassadors and other Public Ministers” creates such a plenary power. The framers almost certainly considered the Receive Ambassador Clause as merely imposing a ministerial duty on the President as head of state (as I describe in my article). Justice Scalia seemed particularly skeptical that the Receive Ambassador Clause created a plenary recognition power.  Alternatively, the Solicitor General argued that history and functional considerations of efficiency and the need for secrecy had placed a gloss on the Executive power, which led the Chief Justice to comment that this did not appear to be a textual commitment argument.  This portion of the Solicitor General’s argument is fascinating because he appeared to resurrect the theory of inherent plenary executive powers that had been advanced by the previous administration.

The Petitioners’ Reply Brief contains historical material (which the Solicitor General disputed at oral argument) that, at least through the Lincoln administration, no President claimed that he possessed such an exclusive power. In notable cases of recognition, Presidents Washington, Monroe, Jackson, Taylor and Lincoln either relied on duties of international law, acted jointly with Congress or deferred altogether to Congress.

My own view is that history and the President’s role in conducting foreign policy gives him the implied power to recognize foreign states and government, but that power is not plenary. Much as in the case of executive agreements, historical practice confirms an implied executive power that the President can exercise without specific Congressional authorization; but his decisions can be modified or overridden by statute.

The public should understand that this case has implications well beyond the content of passports. This case is at the tip of the iceberg of Middle East policy and politics. Can the President unilaterally recognize a Palestinian state with defined boundaries? Can Congress modify or override such recognition? The answers to these questions (mine are “yes” to each) may be determined by the decision in this case.