The Supreme Court will decide the Jerusalem passport case, Zivotofsky, sometime between now and late June. (For details on the case, see the SCOTUSblog page and Lawfare coverage here and here and here.) At a broad level of generality, the issue in Zivotofsky is how to think about whether and when Congress, in the exercise of its Article I powers, can affect or limit the President’s Article II powers. The Supreme Court has said remarkably little about this issue during its history, and it is impossible to predict how the Court will come out, or on what ground. But it is fair to predict that Zivotofsky will be a landmark case in allocation of power between the President and Congress in the conduct of foreign relations.
This important decision may be released in the midst of a standoff between the President and Congress over a possible deal with Iran to limit its nuclear weapons developments in exchange for (among other things) significant relief from U.S. sanctions enacted by Congress over several decades. Right now, to me at least, the separation of powers issues concerning the Iran matter seem clear. The President is well within his authority to negotiate a non-binding agreement with Iran, waive U.S. sanctions to the maximum extent allowed by statute, and work in the United Nations Security Council to bless the deal and remove UN sanctions – all without seeking Congress’s formal approval. But Congress has tools as well. I don’t see how it can stop the President from negotiating the deal or bringing it to the UN for the removal of UN sanctions. But it can enact legislation (over the President’s threatened veto) that removes or limits or delays the President’s authority to waive U.S. sanctions. (This is in effect what the Corker Bill aims to do.) Since there are clear Article I bases for the sanctions (most notably the foreign commerce clause), Congress’s has the authority to alter its sanctions regime in this way, even in the midst of the ongoing Iran negotiations.
Zivotofsky raises different issues than the Iran matter. And yet one can imagine Zivitofsky affecting the political and legal debate between Congress and the President on an Iran deal. At the very least, whichever side prevails in the passport matter will be bolstered politically in its fight with the other side. One can also imagine a holding or dicta in the case – perhaps about the President’s unique or exclusive authority as the “sole organ of communication” in foreign affairs, or about Congress’s broad and independent role in regulating U.S. foreign affairs – affecting the debate. It is even possible that the Court will rule so broadly on the President’s exclusive power to conduct diplomacy that the President would be emboldened to disregard any congressional restrictions on his sanctions waiver authority – though I think this extremely unlikely for many, many reasons.
The general point is that the Supreme Court is right now drafting (or about to announce) an opinion on the allocation of authority between the political branches in setting policy in the Middle East, and that opinion, once announced, will likely have an impact on the debate about the allocation of authority between the political branches in setting policy on the major Middle East issue of the day. The Justices read the newspapers. One wonders whether – and if so, how – they are crafting the opinion with the Iran matter in mind.