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

by Ryan Scoville

[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.

5 Responses

  1. Ryan — I didn’t think the U.S. followed the de jure/de facto distinction anymore  (especially with respect to governments).  Also, I don’t think it was a distinction present at the founding either. If that’s the case, how does it effect your thesis?  .

  2. Those are really good points. Here are two possible answers, the second one admittedly moving a little farther away from my initial argument: (1) The de jure / de facto distinction matters not because the U.S. uses those terms in characterizing its relations toward other states and governments, but because U.S. practice developed under the historical influence of those international legal categories, so that the separation of powers now corresponds with them. (2) The distinction per se doesn’t matter, but is useful because it’s simple and happens to correspond pretty closely with executive and legislative practices that are justified on other constitutional grounds.

  3. Response…It’s hard to believe that one of the reasons we got rid of the Articles of Confederation was the serious difficulty its inherent deficiencies posed to the prevention of violations of the law of nations and of treaties by the fledgling legislative departments. On the other hand, the behavior of the President is almost schizophrenic. When the Democrats refused to put a plank in the party platform recognizing Jerusalem as the capital of Israel, Obama intervened and pushed through an amendment in mid-convention. The vote had to be repeated three times before it passed over a loud chorus of no votes. But his Secretary of State is still singing a completely different tune in Court.
    Re: I didn’t think the U.S. followed the de jure/de facto distinction anymore  (especially with respect to governments).
    The discussion of some of the details of that situation isn’t entirely hypothetical, if you consult some of the existing laws on the books, court cases, or the documentary historical record. Talmon cites the example of US recognition of Israel from the US State Department’s (Hackworth edition) of the Digest of International Law to illustrate that recognition of statehood was always de jure, and that the de facto/de jure distinction only applied to the initial recognition of the provisional government of Israel. He mentions in passing an advisory opinion authored by Ernest Gross for Clark Clifford at the request of Assistant Secretary Lovett. It resulted in a demand from Clifford to the officials of the provisional government that the request for recognition mention Israel’s establishment within the specific boundaries contained in the UN resolution. 
    That exchange between Ambassador Jessup and the State Department regarding recognition of Israeli statehood and its provisional government corresponded with the notions reflected in Jefferson’s opinion on the French Treaties and the Montevideo Convention, which says that recognition of statehood, as opposed to recognition of a government, is unconditional and irrevocable. The somewhat dated Restatement, Third, of the Foreign Relations Law of the United States advised that “de jure” and “de facto” were deprecated terms and quoted State Department officials who said that the question of recognition itself simply does not arise. There has been a great deal of evidence to the contrary in the cases of Kosovo, Libya, Ukraine, et al.
    The articles cited by Ryan above note that the Supreme Court itself used to hold that the recognition power was shared by the political branches and that decisions regarding recognition were a political question, e.g. Oetjen V. Central Leather Co. , 246 U.S. 297 (1918) But the Court below cited and quoted numerous Supreme Court decisions on remand in Zivotofsky which explicitly stated that “Political recognition is exclusively a function of the Executive.” i.e. Banco Nacional de Cuba v. Sabbatino – 376 U.S. 398 (1964). See also the Court’s citations from Guaranty Trust, Belmont, Pink, & etc. The Roberts Court rejected the application of the political question doctrine to Zivotofsky the first time around.
    Abe Foxman of the ADL wrote an editorial in Haaretz complaining that the State Department still enters “Palestine” on documents of persons born elsewhere in the country during the mandate era. The US Congress still has laws on the books that require the State Department to treat UN trusteeships and LoN mandates, including Palestine, as separate foreign states for the purposes of intertemporal law. For example, U.S. Title 8, Chapter 12, § 1101. “Definitions” still distinguishes between aliens who immigrated from mandates and those from outlying imperial possessions. It says that territories under mandate or UN trusteeship shall be regarded as separate foreign states. The Justice Department treats Palestinian national origin as a federally protected characteristic under the civil rights statutes. In the 1990s the State Department published part of its declassified documentary record on Congressionally mandated aspects of foreign policy contained in “a Memorandum of Conversation between William Crawford Jr. and Mr. Shaul Bar-Haim from the Israeli Embassy (February 7, 1963)” regarding Jerusalem. Bar-Haim said “The use of the term “Palestine” is historical fiction; it encourages the Palestine entity concept; its “revived usage enrages” individual Israelis”. Crawford replied “It is difficult to see how it “enrages” Israeli opinion. The practice is consistent with the fact that, ”in a de jure sense”, Jerusalem was part of Palestine and has not since become part of any other sovereignty. That it was not a simple matter, since there was a ”quota nationality”, in regard to which U.S. legislation and regulation continue to employ the term Palestine. See Foreign Relations of the United States, 1961-1963, Vol. Xviii, Near East, United States. Dept. of State, G.P.O., 1995, page 341. At that time, the US was still entering “Jerusalem, Palestine” on all of its official documents.  But the US stopped using “Palestine” in connection with Jerusalem after Israel objected. See Foreign Relations of the United States, 1964–1968, Volume XVIII, Arab-Israeli Dispute, 1964–67, Document 30, footnote 2
    That practice was consistent with the UN “Plan for the Future Government of Palestine” and the unsettled final status of the territory under the terms of the armistice agreements. The former required the establishment of the City of Jerusalem as a Corpus Separatum. The latter were adopted by the Security Council as an Article 40 provisional measure without prejudice to the rights of the parties concerned. The Security Council added another factor, when it declared Israel’s subsequent attempts to unilaterally alter the status of the city null and void and called upon member states not recognize the situation as being legal. § 201 Reporter’s Note 3 of the Third Restatement says: “The United States will treat States the territory of which is under foreign military occupation as continuing to exist.” 22 U.S. Code § 8602 Statement of Policy item (6) still implicitly supports the Executive branch position that a negotiated settlement is required to determine the final status of the city.
    Another relevant item of historical interest is the case of “Kletter v. Dulles, Secretary of State” (1953), in the United States District Court, District Of Columbia.  The Court ruled against the petitioner and held that Palestine was a separate foreign state as defined by the Congress and that the recognition power was a political question that could only be decided by one of the political branches:

        “The contention of the plaintiff that Palestine, while under the League of Nations mandate, was not a foreign state within the meaning of the statute is wholly without merit. . . . Furthermore, it is not for the judiciary, but for the political branches of the Government to determine that Palestine at that time was a foreign state. This the Executive branch of the Government did in 1932 with respect to the operation of the most favored nations provision in treaties of commerce.”
    If recognition of statehood is unconditional and irrevocable then the continued use of Jerusalem, Palestine pending a negotiated settlement seems appropriate. The international community of states have cited the customary prohibition against the acquisition of territory by war in support of their refusal to recognize any attempts by either side to unilaterally alter the city’s status. I don’t think that the US Supreme Court, or even a Court of Impeachment, is going change the overarching legal situation.

Trackbacks and Pingbacks

  1. […] 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, the case 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. After signing the bill into law, President Bush declined to honor its terms, and President Obama has done likewise. Both have argued that the passport requirement impermissibly interferes with the President’s recognition power because it contradicts a longstanding U.S. policy not to acknowledge the sovereignty of any state over Jerusalem. The Zivotofskys appear to agree that honoring the requirement would amount to U.S. recognition of an Israeli state that includes Jerusalem, but contend that the statute is constitutional and binding on the President because Congress shares in the recognition power. Oral argument is scheduled for the fall. If you’re interested, I wrote a brief analysis of the case over at the international law blog Opinio Juris. You can read it here. […]

  2. […] I’ve done a guest post on Zivotofsky v. Kerry, the Israel passport case, over at the international law blog Opinio Juris. It’s available here. […]