Three Quick Thoughts on Zivotofsky

by Peter Spiro

Long-awaited decision here finding the President to have exclusive recognition power, trumping Congress’ attempt to require birthplace of US citizens born in Jerusalem to be recorded as “Israel” on US passports issued to them.

1. Phew. Who knows what the response would have been in the Middle East if the Court had come out the other way. Maybe nothing, but it’s obviously still a tinderbox in which little sparks can lead to firestorms.

2. Though the President wins, Kennedy’s opinion cuts back on Curtiss-Wright, dismissing its broad characterization of executive power as dicta.

In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. See, e.g., Medellín v. Texas, 552 U. S. 491, 523–532 (2008); Youngstown, 343 U. S., at 589; Little v. Barreme, 2 Cranch 170, 177–179 (1804); Glennon, Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright? 13 Yale J. Int’l L. 5, 19–20 (1988); cf. Dames & Moore v. Regan, 453 U. S. 654, 680–681 (1981). It is not for the President alone to determine the whole content of the Nation’s foreign policy.

The era of government lawyers playing the “Curtiss-Wright, so I’m right” card is officially over.

3. There’s a lot of “one voice” talk in Kennedy’s opinion, trumpeting the functional virtues of presidential control (see especially the bottom of p. 11). That’s disappointing to those of us looking for a move away from exceptional approaches to resolving foreign affairs disputes. Together with last year’s flame out in the big Treaty Power case, maybe the Court is having second thoughts about the normalization project. This was a bad vehicle for advancing that agenda (see thought #1), but now that the decision is on the books, it will retard it in more favorable ones.

But there are developments beyond the Court’s control at work on the ground. Remember the huge flap over the Tom Cotton letter to Iranian leaders earlier this spring. So much for “one voice.” Things are anything but normal when it comes to separation of powers respecting foreign affairs. Zivotofsky notwithstanding, we’re not going back to an old world in which Presidents had centralized control of the nation’s engagement with the world.

http://opiniojuris.org/2015/06/08/three-quick-thoughts-on-zivotofsky/

2 Responses

  1. Chief Justice Roberts Regarding Point #2:

    “The expansive language in Curtiss-Wright casting the President as the “sole organ” of the Nation in foreign affairs certainly has attraction for members of the Executive Branch. The Solicitor General invokes the case no
    fewer than ten times in his brief. Brief for Respondent 9, 10, 18, 19, 23, 24, 53, 54. But our precedents have never accepted such a sweeping understanding of executive power.

  2. Ku may be right that you read too much into the opinion about “slapping down the Executive”. Rather, as I advocated it should in my amicus brief for Kerry, the Court recognizes a balance between Executive and Legislative, e.g., President can recognize Cuba, Congress doesn’t have to fund an embassy.

    Tom Cotton’s “voice” may have violated the spirit of the Logan Act, by the way. Law-abiding people should not cotton to what Cotton did.

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