08 Jun The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs
I generally read the U.S. Constitution to grant broad powers to the President in the conduct of foreign affairs (see here for my recent take on Presidential war powers), but I am more hesitant to read the Constitution to prohibit congressional override of executive acts. That is why I disagree with Peter’s implication above that today’s U.S.Supreme Court decision in Zivotofsky in any way cuts back on presidential power in foreign affairs. I also disagree with Deborah’s characterization of the opinion as “narrow.” To me, it is actually a remarkable endorsement (by justices not named Clarence Thomas) of the President’s power to act in defiance of an express congressional mandate.
Which is a roundabout way of explaining my surprise that the Supreme Court upheld the President’s decision to defy and ignore an express congressional mandate requiring him to allow individuals to list “Jerusalem, Israel” as the place of birth on their passports. I don’t doubt that the President gets to decide whether the U.S. will recognize whether Jerusalem is “in” Israel, but I am a bit surprised to see that majority endorse the power of the President to ignore an express congressional mandate, especially when the majority doesn’t even make clear that the “recognition” power is being affected by a passport listing.
To put in constitutional law-nerd terms, Justice Jackson’s classic concurring opinion in Youngstown Sheet & Tube listed three categories of presidential power: expressly authorized by Congress, not authorized by not prohibited by Congress, and expressly prohibited or mandated by Congress. This last category, which Jackson described as where the president’s power is at his “lowest ebb,” has never been applied by the Supreme Court before today. Indeed, many commentators in the context of the commander in chief power have suggested such exclusive powers don’t really exist (see my musings here on this point in the context of the commander in chief power). Justice Thomas was out on his own island in Hamdi v. Rumsfeld, for instance, but he was relying on a very similar structural argument to the one the Court introduced today.
I think that the President’s recognition power is probably exclusive, but that what constitutes the “recognition” should be interpreted quite narrowly. That is why I joined Eugene Kontorovich’s amicus brief arguing that a passport designation is not part of the recognition power. Indeed, if it IS part of the recognition power, the government of China is going to have a pretty good complaint about laws that allow the designation of “Taiwan” on passports. So the Court may have inadvertently created new diplomatic complications in its efforts to avoid other ones.
In any event, the Court could have chosen the “judicially modest” way out. It could have interpreted the relevant statute narrowly to avoid touching on the “recognition” power. Instead, it reached out to announce judicial endorsement of an exclusive presidential power, and invalidated a law passed by Congress and signed by the President. I am glad to welcome Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy to the “exclusive presidential power” bandwagon. Justice Thomas was getting lonely, so I suppose he will be glad to have the company.