Zivotofsky

Last year the Supreme Court, seized with a big constitutional question about foreign relations, feinted: Bond v. United States turned on rules of statutory interpretation rather than the constitutional balance between federalism and the treaty power. Fans of constitutional controversy, which centers attention on the Court in its self-assigned role as ultimate constitutional arbiter, may regret this move, although I do not.

The Supreme Court in Zivotofksy 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 (Section 214 of the 2003 Foreign Relations Authorization Act) infringes on the President’s exclusive power to recognize foreign sovereigns.

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.