Guest Post: De Jure and de Facto Recognition as a Framework for Zivotofsky

[Ryan Scoville is an Assistant Professor of Law at Marquette University Law School.]

Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, Zivotofsky concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. Oral arguments are scheduled for the fall. The case has generated a lot of interesting commentary, the most impressive of which is a pair of law review articles (here and here) by Robert Reinstein, who uses textual and historical analysis to argue that the President shares the recognition power with Congress. In this post, I want to sketch out an alternative view that grants substantial recognition powers exclusively to the President while also making sense of Professor Reinstein’s historical research.

As I understand it, Reinstein’s argument goes like this: First, claims of executive exclusivity must meet a heavy burden of persuasion because plenary executive power is contrary to the Constitution’s system of checks and balances. Second, the claim of an exclusively executive power over recognition fails to meet this burden—the plain text of the Constitution offers no support, evidence of original meaning is silent, and post-ratification history suggests, if anything, that the political branches hold the recognition power concurrently. Congress thus shares authority to recognize foreign states and governments. Reinstein focuses more on defeating the idea of plenary executive power than identifying the affirmative source of a concurrent power in Article I, but he notes that Congress’s authority to declare war, regulate foreign commerce, and enact necessary and proper legislation creates an implied basis for congressional recognition.

In laying out an alternative view, I want to suggest first that it’s important to be precise about what “recognition” means. International law of course differentiates between the recognition of states and governments, and between recognition de jure and de facto. With de jure recognition of a state, the United States expresses that a given political unit qualifies as a state under international law and thus holds the rights and obligations that accompany statehood, including the right to invoke sovereign immunity and the act of state doctrine as defenses in court. De jure recognition of a government, by contrast, is acknowledgment of a foreign government as the depository of a state’s sovereignty. This kind of recognition signals a general willingness to enter into normal diplomatic relations and facilitate the government’s exercise of the state’s sovereignty vis-à-vis the United States. Finally, de facto recognition also entails a willingness to carry on official relations, but without necessarily saying anything about the particular form those relations will take. One can de facto recognize a foreign government, for example, without exchanging ambassadors or providing its leaders with immunity from suit. (For a more extensive discussion, see the work of Stefan Talmon.)

These distinctions offer a useful way to conceptualize the separation of powers problem in Zivotofsky. To say that Congress holds a concurrent power to recognize de jure would mean that Congress can formally establish the willingness of the United States to enter into normal diplomatic relations with a foreign government. It would also mean that Congress can decide who gets to invoke sovereign immunity and the act of state doctrine in court and otherwise exercise the prerogatives of statehood under international law. But if Article I provides only for a concurrent power to recognize de facto, then Congress can do no more than establish official relations that fall short of de jure recognition. This might include, for example, trade relations.

My tentative view is that the President holds exclusive power to recognize de jure, but that Congress shares with the President a power to recognize de facto. This position carries a couple of advantages. First, it makes sense of the structure of the Constitution because it aligns with the location of the Receive Ambassadors Clause in Article II and the Foreign Commerce Clause in Article I.

Second, the de jure-de facto divide seems to make more sense of history. Consider, for example, originalist evidence on Congress’s role in diplomacy. It’s fairly clear that the Framers thought the institutional characteristics of Congress rendered the legislative branch unqualified to communicate with foreign states on behalf of the United States. As I’ve explained elsewhere, this view drew on lessons learned under the Congress of the Confederation, which had an unimpressive track record on diplomatic affairs. Congress had been slow in communicating with American ministers abroad and foreign governments. And it had a hard time maintaining secrecy. Influential participants in the ratification debates also thought the legislative branch is ill-equipped to engage in diplomacy due to a perceived tendency for legislators to lack adequate knowledge of world affairs, act on the mercurial pressures of short-term electoral politics, and focus on the parochial interests of constituents rather than the nation as a whole. Of course, whether Congress can communicate with foreign states on behalf of the United States is a different question than whether Congress has a power to recognize states and governments de jure. But they’re closely related. In my view, the Framers’ hostility toward the communicative power makes it less likely that they would have envisioned an Article I source of de jure recognition.

The de jure-de facto divide also helps to make sense of post-ratification history. Professor Reinstein finds that Congress has carried out acts of recognition on four occasions: (1) in an 1800 statute declaring the whole island of Hispaniola to be a dependency of France; (2) in an 1806 statute prohibiting trade with an independent Haiti; (3) in an 1861 statute authorizing the appointment of diplomatic representatives to Haiti and Libya; and (4) in an 1898 joint resolution declaring Cuba’s independence from Spain. Two of these, however, are not examples of de jure recognition. At the risk of quibbling a bit, the provision enacted in 1800 recognized all of Hispaniola as French territory only “for the purposes of th[e the non-intercourse] act” of which the provision was a part, which is to say that Congress did not purport to recognize all of Hispaniola as French territory for any purpose other than one particular trade law. The effect was to make applicable to the entire island a general prohibition on trade with French territories and a limited exception for trade that could “safely be renewed.” To me, that looks like a use of the Foreign Commerce Clause to establish a form of de facto recognition; one can trade with or embargo a foreign counterpart without implying anything about its statehood or the capacity of its government to assert sovereign rights. Put differently, the 1800 provision doesn’t look like an example of recognition de jure because it didn’t purport to trigger the package of legal entitlements and obligations that typically accompany that form of recognition. Put yet another way, if the 1800 provision were a valid example of recognition de jure, Congress today could establish normal diplomatic relations, in addition to activating foreign sovereign immunity and the act of state doctrine, merely by passing a statute that regulates trade with a territory. That can’t be right. The same goes for the 1806 statute, which simply prohibited commercial trade with any portion of Hispaniola that wasn’t under French control. Reinstein’s two other examples—the 1861 statute and 1898 joint resolution—admittedly look a lot more like de jure recognition and are thus harder to reconcile with the approach I describe. My tentative resolution would be to conclude that Congress acted unconstitutionally on those occasions.

If the Court were to use the de jure-de facto distinction in Zivotofsky, the outcome would hinge on which category applies to the passport requirement in Section 214(d). I’m inclined to say that the statute expresses only de facto recognition and is therefore permissible. This conclusion seems consistent with the fact that 214(d) doesn’t of its own force change U.S. policy on whether the privileges of Israeli statehood generally extend to Jerusalem. I would imagine, for example, that the statute has no effect on whether the act of state doctrine applies to official acts within that territory. Characterizing 214(d) as de facto recognition is also consistent with the Taiwan passport law, which, as Professor Reinstein points out, preserves a U.S. policy against de jure recognition of an independent Taiwan while enabling U.S. citizens born there to list Taiwan rather than China as their place of birth. And while 214(d) may operate in tension with U.S. policy on the status of Jerusalem, the simple fact is that the United States has never operated with “one voice” in foreign affairs.

As a final and somewhat unrelated point, I want to highlight that recognition fights can play out in ways that don’t involve the President’s refusal to implement a statute. To name just one example, President Obama and many conservative members of Congress disagreed over whether to recognize the result of a Honduran coup that occurred in 2009. The President supported reinstating the country’s ousted leader and refused to recognize his replacement, but many Republicans in Congress did precisely the opposite, even going so far as to send a delegation of legislators to Honduras as a show of support for the new leadership. Zivotofsky might have implications for this practice even assuming the Court doesn’t directly address it. If the Court were to hold that the President has plenary power over both de jure and de facto recognition, one might fairly question whether it’s permissible for congressional delegations to visit and offer support to foreign governments that the President has shunned. By contrast, a holding that the President shares de facto recognition powers would open up more space for legislative diplomacy.