Executive Power

Quick Reaction to CADC’s Analysis in Zivotofsky

By Jack Goldsmith
Wednesday, July 24, 2013, 6:08 PM

As Raffaela noted this morning, on remand from the Supreme Court’s rejection of the political question doctrine in Zivotofsky v. Clinton, the D.C. Circuit today held that Section 214(d) of the 2003 Foreign Relations Authorization Act, which requires the Secretary of State to record “Israel” as the place of birth on a U.S. citizen’s passport, is an unconstitutional intrusion on the President’s exclusive power to recognize foreign nations.

The hard constitutional question in the case is whether the President does in fact possess an exclusive recognition power vis a vis Congress.  CADC said that he does.  The conclusion is based on an analysis of constitutional text and structure, historical practice, and Supreme Court decisions.  The evidence of text, structure, and historical practice seems even weaker to me than it did to the Court.  But the part of the opinion that really failed to convince me was the argument that Supreme Court decisions (albeit, as CADC notes, in dicta) acknowledge an exclusive Executive power of recognition.  All of the cases cited by the court (see pp. 23 ff.) involve (1) statements of exclusivity vis a vis courts, or (2) cases in which Congress or the Senate had been silent, which means that any notion of a presidential power in this context would have involved inherent (Jackson Category 2) presidential power, not exclusive (Jackson Category 3) presidential power.  The Jerusalem passport context, by contrast, involves a classic Jackson Category 3 situation -- one in which, in Jackson’s words, “the President takes measures incompatible with the expressed or implied will of Congress.”  None of the Supreme Court cases cited by CADC involve this context, even in dicta.  Not only has the Supreme Court never opined (even in dicta) on the exclusivity of the President’s recognition power in a context where Congress had acted in conflict with the President.  As Judge Tatel notes in his concurrence, “neither party (nor any of the amici) points to any time in our history when the President and Congress have clashed over an issue of recognition” – even in contexts that never reached the courts.

For this reason, I view all of the historical and Supreme Court “precedents” cited by CADC and the concurrence to be no precedent at all.  (In this regard, I do not understand how Judge Tatel – who shows greater awareness of the problem than the majority opinion – concludes that the “great weight of historical and legal precedent” supports the Court’s conclusion about the exclusivity of presidential power.)  Given the already-noted inconclusiveness of  constitutional text and original understanding on this issue, Zivotofsky appears to be a case in which (again, in Jackson’s words) there is no “really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves.”