Executive Power

Interesting Case Concerning the President's Recognition Power

By Curtis Bradley
Tuesday, May 10, 2011, 1:37 PM

The Supreme Court recently granted review in a case, Zivotofsky v. Secretary of State, that concerns the scope of the President’s power to recognize foreign governments.  This case is the latest iteration of a recurring dispute between Congress and the Executive Branch over U.S. policy relating to Jerusalem.  Israel maintains that Jerusalem is its capital, and it has exercised control over West Jerusalem since 1948 and over East Jerusalem since 1967.  Congress has generally been supportive of Israel’s position.  The Executive Branch, however, has long maintained that the status of Jerusalem is a matter to be worked out in negotiations between the Israelis and Palestinians.

In 1995, Congress enacted the Jerusalem Embassy Act, which declared it to be the policy of the United States that ‘‘Jerusalem should be recognized as the capital of Israel,’’ and ‘‘that the United States embassy in Israel should be established in Jerusalem no later than May 31, 1999,’’ and which conditioned half of the State Department’s appropriations for the acquisition and maintenance of buildings abroad on the construction and opening in Jerusalem of the United States Embassy. The Justice Department’s Office of Legal Counsel advised President Clinton that such conditional appropriations ‘‘invade exclusive presidential authorities in the field of foreign affairs and are unconstitutional.’’  Notwithstanding the Act, the Executive Branch has maintained the U.S. embassy in Tel Aviv rather than Jerusalem.

In 2002, Congress enacted Public Law 107-228, Section 214(a) of which “urges the President . . . to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem” and forbids the Executive Branch from using appropriated funds for “publication of any official governmental document which lists countries and their capital cities unless the publication identifies Jerusalem as the capital of Israel.”  Section 214(d) proceeds to state that “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”  When signing the bill into law, President Bush issued a statement expressing the view that Section 214 was merely advisory because a congressional command to change U.S. policy on Jerusalem 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.”

Pursuant to Section 214(d), the American parents of a child born in West Jerusalem sought to have the child’s U.S. passport state that the place of birth was “Israel.”  Consistent with its past practice and longstanding policy, the State Department refused, listing the place of birth simply as “Jerusalem.”  The parents then sued the Secretary of State, seeking to compel compliance with Section 214(d).  The D.C. Circuit upheld dismissal of the suit, holding that adjudication of the case was barred under the political question doctrine.  In a concurrence, Judge Edwards disagreed with the majority that the case presented a nonjusticiable political question but concluded that Section 214(d) was an unconstitutional infringement on the President’s recognition power.

The Supreme Court has asked for briefing on both the political question issue and the presidential power issue.  In my view, Judge Edwards’ position is stronger than the majority’s position.  It is well established that, as part of his constitutional authority to send and receive ambassadors, the President has the exclusive power to determine which governments are recognized by the United States.  While one basis for applying the political question doctrine is a finding that the constitutional text commits an issue for exclusive resolution by a political branch, the issue presented in this case is not whether to recognize Israeli sovereignty over Jerusalem but rather whether Section 214(d) invades the President’s exclusive authority to make that determination.  I tend to agree with Judge Edwards that it does invade that authority, but I don’t see why the question is nonjusticiable.