Congress has decisively lost to the president in the year’s most consequential balance-of-powers dispute before the Supreme Court.
The president must have exclusive power to formally recognize the government of another nation, the court declared Monday in a 6-3 decision both sides predicted would shift influence over American foreign policy away from the Capitol and push more of it toward the White House. At the heart of the majority’s reasoning was one of the most obvious and central differences in the Constitution’s designs for the executive and legislative branches, which the justices said should rightfully handicap the roles of the House and Senate in shaping international affairs: The president speaks with a single voice, while Congress is by its nature an often contradictory chorus.
The decision serves as a heavy counterweight to the court’s big ruling on the balance of powers from a year ago, when the justices were unanimous in deciding President Barack Obama had overstepped his authority to make recess appointments to domestic policy regulatory boards. In that case, the court said the president had no constitutional choice but to wait out the cacophony (or, more frequently, the silence) of the Senate confirmation process, unless the senators declared themselves on a genuine break from their work.
On the surface, the new case was about the relatively narrow question of whether Congress has the authority to decide language that will appear on a United States passport — in particular, whether it was within bounds to write a law 13 years ago requiring the State Department to “record the place of birth as Israel” on the passports of children born in Jerusalem if that’s what the parents requested.
But the majority pushed its decision beyond that already sensitive diplomatic subject, concluding that determining what a passport says is part of the president’s power to decide which sovereign nations will receive recognition.
“Put simply, the nation must have a single policy regarding which governments are legitimate in the eyes of the United States,” Justice Anthony M. Kennedy wrote for the court.
“Between the two political branches, only the executive has the characteristic of unity at all times,” he went on, and the 2002 “congressional command would not only prevent the nation from speaking with one voice but also prevent the executive itself from doing so in conducting foreign relations.”
The dissenters were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr.
“The text and structure of the Constitution divide responsibility for foreign policy, like responsibility for just about everything else, between the two coordinate and equal political branches. A principle that the nation must have a single foreign policy, which elevates efficiency above the text and structure of the Constitution, will systematically favor the president at the expense of Congress,” Scalia said in summarizing his dissent from the bench. “It is possible that it will make for a more effective foreign policy, perhaps as effective as that of Bismarck or King George. But it is certain that, in the long run, it will erode the structure of equal and separated powers.”
Roberts, in a separate opinion, warned of a different precedent the majority could be setting.
It was wrong to strike down the law “based on the mere possibility that observers overseas might misperceive the significance of the birthplace designation,” he wrote. “In the process, the court takes the perilous step — for the first time in our history — of allowing the president to defy an act of Congress in the field of foreign affairs.”
The passport language, along with a provision pressing the relocation of the U.S. Embassy to Jerusalem from Tel Aviv, was included in a broader State Department authorization measure.
When President George W. Bush signed the bill, he issued a statement describing the Jerusalem provisions as “advisory” and declared he would ignore them because they “impermissibly interfere with the president’s constitutional authority to conduct the nation’s foreign affairs.”
Obama has taken the same position, so the passport statute has never been in force. Soon after the law went on the books, the parents of Menachem Zivotofsky sued in federal court after consular officials refused to include “Israel” along with “Jerusalem” as their newborn son's birthplace. It was their lawsuit the court dismissed Monday. (Had the court ruled the other way, the now 12-year-old Zivotofsky and about 50,000 other U.S. citizens born in the city could have gotten their passports altered.)
The status of Jerusalem has been a vexing diplomatic matter for almost half a century. Israel has controlled all the city since the 1967 Six-Day War and proclaims it as its capital. The Palestinians have declared East Jerusalem will be the capital of their independent state. Under presidents of both parties, U.S. policy has refrained from recognizing any national sovereignty and has said the historic city’s formal place on the world map should be settled through negotiations between the Israelis and Palestinians. The Obama administration reiterated that view in its briefs in the Zivotofsky case.
Although the court said Congress had overstepped its bounds on the passport matter — by effectively claiming some power over diplomatic recognitions — the majority opinion went out of its way to enumerate the parts of the Constitution that give lawmakers a role in foreign policy, from authority over immigration and foreign commerce to the power to allocate funding for a new embassy.
“Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And those decisions require action by the Senate or the whole Congress,” Kennedy wrote. “In practice, then, the president’s recognition determination is just one part of a political process that may require Congress to make laws.”
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