Don’t be surprised

If I demur, for, be advised

My passport’s green.

No glass of ours was ever raised

To toast The Queen.

Seamus Heaney[1]

[Last March, you may recall, we posted a blog about foreign relations, our President and the Congress.[2] Israel’s Prime Minister had just come by on a campaign swing; lectured us about why we shouldn’t negotiate with Iran about nuclear weapons or anything; accepted the applause of a grateful Republican Congress; and returned home to win a decisive victory in his own election. Enthused by the proceedings some Republican Senators – 47 of them – followed up with an “open letter” to Iran’s, senior leadership[3], advising that any agreement on nuclear weapons with the Obama Administration could be short-lived. Without action by the Congress any agreement with the present Administration could be dispensed with by the next.[4] Was this an invitation to Iran to open negotiations with Republicans as well as the current Administration? Was it simply an effort to stop the current negotiations in their tracks? Or what?

Frankly I was confused, so I called Larry, our consultant on legal matters, to help me understand. He said, in essence, that he wasn’t a mind-reader, so he couldn’t say what the people who signed that letter actually intended to do. But, he said, there is a Constitutional doctrine out there to the effect that the President is “the sole organ of the nation in its external relations, and its sole representative with foreign nations.[5]” This idea dates back to John Marshall, the first Chief Justice of the Supreme Court, although he put it forth when he was a Member of Congress, not in deciding a case.[6] Some 130 years later the Supreme Court picked up on the same notion in United States v. Curtiss Wright[7]saying that the President has “the very delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations ….”[8] Also there’s a statute that arguably makes it illegal for any U.S. citizen not in the Executive Branch to meddle in U.S. negotiations with foreign powers.[9]

Anyway, last week Larry called and said that there have been new developments in the debate about who controls foreign policy. The new development is, of course, Zivotofsky v. Kerry[10], a recent decision of the U.S. Supreme Court. What was that case about, Larry, and what did it say?]

Thanks for the intro. To understand what happened in Zivotofsky, perhaps it’s best to start with the Curtiss Wright decision you mentioned earlier. While Curtiss-Wright said that the President is the “sole organ” of our Government in international relations, it added an important, albeit obvious qualification. The President must exercise that power “in subordination to the applicable provisions of the Constitution.[11]

Our Constitution vests “executive power” in the President of the United States, but limits him by providing that Congress makes the laws he must enforce. [12] So what happens when Congress decides to make a law about an area where the President has wide discretion, say, in international relations, where he is the “sole organ”?

The fact of the matter is, the Constitution assigns lots of responsibilities to Congress that touch on or affect foreign relations. Congress can regulate foreign commerce; establish a uniform rule for naturalizing citizens; coin money, regulate its value, and that of foreign currency; define and punish piracies, etc., committed on the high Seas, and offences against the Law of Nations; declare war, grant Letters of marque and reprisal, and make rules concerning captures on land and water; and so forth.[13]

[This sounds pretty mushy to me.  The President is the “sole organ” of foreign policy, but Congress has a lot of power too. What’s your point?]

Well, that brings us to Zivotofsky. You see, Zivotofsky, a U.S. citizen, wanted a U.S. passport, or more particularly, a passport that said he was born in Israel. In truth, he was born in the city of Jerusalem.

[So what. Israel pretty much controls Jerusalem these days, doesn’t it? So Zivotofsky just wanted his passport to recognize that reality. What’s the harm in that?]

The harm is, no U.S. Administration, since the founding of the state of Israel, has recognized any country as having sovereignty over Jerusalem. That’s an issue to be decided by the Israelis and the Palestinians, through negotiations, rather than by the U.S.[14]

Congress tried to change the U.S. position back in the George W. Bush Administration, by adding §214(d) to the Foreign Relations Authorization Act of 2003. Section 214(d) required that any person born in Jerusalem must be listed on his or her passport as born in Israel, if they so request.[15] President Bush signed that Act, but said that he would construe the part that dealt with Jerusalem as advisory rather than mandatory. “[I]f construed as mandatory … [it would] impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”[16]

[So how did the case come out? Did Zivotofsky get his wish? Could he specify the country of his birth?]

No. The Court agreed with Presidents Bush and Obama. The statute at issue was an unconstitutional infringement of the President’s authority. “[J]udicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations.”[17] Congress can’t require the President to reverse or contradict his determinations.

But the Administration didn’t get everything it might have wanted from the case. Relying on Curtiss Wright, one could argue that, as the “sole organ” for international relations, the Executive should have broad authority free of Congressional interference to do what it needed to do in foreign affairs. The Court didn’t go that far[18]  Instead it limited its holding solely to the power of the Executive Branch to recognize, or not to recognize, other governments.

In holding §214(d) invalid the Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular. This case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds.”[19]

In short, the Court was not particularly interested in straying very far from the facts of the case before it.

[Thanks, Larry. One final question?  What was the vote in this case?]

Justice Kennedy wrote the majority opinion, and was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. Justice Thomas, a 6th vote, agreed with the result, at least as far as passports were concerned, but disagreed with the Kennedy analysis on other matters.[20] The remaining three [Scalia, Roberts and Alito] dissented. So I guess the final tally was 6/3.

[Interesting. Anyway, harking back to our opening quote, perhaps in other countries people choose the color of their passports but it’s not the same over here. If a U.S. citizen is born overseas he must be born in a country we recognize, or we might pick one for him.]

 

[1] See Oxford Dictionary of Quotations (6th Edition) (Oxford, 2004) at p. 378, Seamus Heaney, n. 1. Henceforth this Dictionary will be cited as ODQ at __.

[2] See the blog of 03/22/2015, The Logan Act, available at https://opsrus.wordpress.com/2015/03/22/the-logan-act/ .

[3] See U.S. Senate, An Open Letter to the Leaders of the Islamic Republic of Iran (March 9, 2015), available from many sources, including http://www.franken.senate.gov/files/documents/150309IranLetter.pdf We’ll cite this as The Letter of the 47 at __.

[4] See The Letter of the 47 at par. 4: “…we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next President could revoke such an agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”

[5] See John Marshall, Writings (LOA 2010) at Speech on the Case of Thomas Nash, p. 177 (March 7, 1800). Actually, there’s more and it’s all interesting. Hereafter this will be cited as Marshall, Writings at __.

[6] See Marshall, Writings at Speech on the Case of Thomas Nash, p. 177 (March 7, 1800). “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence the demand of a foreign nation can only be made on him. … He possesses the whole executive power. He holds and directs the force of the nation. Of consequence any act to be performed by the force of a nation, is to be performed by him.”

[7] 299 U.S. 304 (1936). If you don’t want to go to your local law library, you can find an online version of the decision at https://supreme.justia.com/cases/federal/us/299/304/case.html

[8] See 299 U.S. 304, 319-320.

[9] See 18 U.S.C. §953, Private Correspondence with foreign governments: ”Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

[10] Zivotofsky v. Kerry, 576 U.S. ___ (2015) (slip opinion, June 8, 2015). Justice Kennedy wrote the majority opinion; Justice Breyer filed a concurring opinion; Justice Thomas concurred in the judgment and dissented in part; and justices Roberts and Scalia filed separate dissents. Since we only have the slip opinion, and the majority, concurring and dissenting opinions are separately numbered, we’ll cite them as Zivotofsky, majority opinion (Kennedy) at __, concurring opinion (Breyer) at __, dissent (Scalia) at __, and so forth.

[11] See 299 U.S. 304, 319-320.

[12] See U.S. Constitution, Article II, Sec. 1: “The executive Power shall be vested in a President of the United States of America”; U.S. Constitution, Article I, Sec. 1; “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” If you want to examine the Constitution, and its Amendments, check out the National Archives for authoritative versions. Go to: http://www.archives.gov/exhibits/charters/constitution.html

[13] See U.S. Constitution, Article I, Sec. 8.

[14] See the discussion in Zivotofsky, majority opinion (Kennedy) at 2-4. See also id. at 2: “Yet, in contrast to a consistent policy of formal recognition of Israel, neither President Truman nor any later United States President has issued an official statement or declaration acknowledging any country’s sovereignty over Jerusalem.”

[15] See Zivotofsky, majority opinion (Kennedy) at 2-4.

[16] See Zivotofsky, majority opinion (Kennedy) at 4.

[17] See Zivotofsky, majority opinion (Kennedy) at 18.

[18] See Zivotofsky, majority opinion (Kennedy) at 18: “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. … It is not for the President alone to determine the whole content of the Nation’s foreign policy.

[19] See Zivotofsky, majority opinion (Kennedy) at 29.

[20] Justice Thomas’ opinion is longer than the majority’s.

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