One of the noteworthy disagreements in Zivotofsky concerns the significance of foreign perceptions of U.S. law. Justice Kennedy concluded that the statute is unconstitutional not simply because it purports to compel the President to issue statements that contradict his policy on the status of Jerusalem, but also because those statements would mislead foreign audiences to think that U.S. recognition policy has changed. Several key questions arise as a consequence of this emphasis on foreign misperception.
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Zivotofsky was expected to make a valuable contribution in the form of its analysis of the scope of exclusive executive power. But the Court failed to set forth a compelling or clear method of deciding exclusivity, and instead, it chose to rely on a variety of indeterminate sources. This approach is troubling for many reasons, not least because it opens the door to problematic “functional” analyses of the type exemplified by Zivotofsky itself.
The Zivotofsky case is about the Supreme Court as much as it about foreign relations law. There is more mischief than guidance in what the court says when it wrestles with hard constitutional questions. The opinion offers considerable comfort to defenders of the President in matters of foreign relations. One voice and bad congressional purpose can be trotted out almost anytime. Yet the Court can pivot easily in almost any case, finding a legitimate enactment where today it sees only perversity.
This morning, the U.S. Supreme Court engaged deeply in Zivotofsky v. Kerry with significant questions implicating foreign relations law and the separation of powers, and—perhaps surprisingly—provided some illuminating answers. Lawfare has drafted a summary of the Court's 93-page opinion.
The Supreme Court in Zivotofsky held that the President can disregard a statute that requires him to designate “Israel” on passports of U.S. citizens born in Jerusalem because the statute infringes on the President’s exclusive power to recognize foreign sovereigns. It is very unusual for the Court to give the President a victory in defiance of a congressional restriction, and it is literally unprecedented for the Court to do so in the foreign relations context, as the Chief Justice noted in the first sentence of his dissent. This is one important feature of the case.
The decision in Zivotofsky v. Kerry, a blockbuster foreign policy-related Supreme Court case that many of us have been watching carefully, was just released: The DC Circuit is affirmed. The President holds the exclusive power to recognize foreign sovereigns, and the relevant statute compelling the Executive to write "Israel" on relevant passports impermissibly infringed on this exclusive authority to determine the status of Jerusalem.
The Supreme Court recently granted certiorari in Spokeo v. Robins, a Fair Credit Reporting Act case which might appear to have little connection to national security and foreign relations law. But the case is about standing, in particular Congress’s power to confer standing on private parties who do not suffer an injury-in-fact but have been deprived of the legal rights created by the statute.
The Supreme Court granted cert. today in Zivotofsky v. Clinton. In that case the D.C. Circuit, on remand from the Supreme Court, 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.