In a major constitutional showdown, a divided Supreme Court ruled in Zivotosfky v. Kerry that the president, and not Congress, has the final say on who gets to recognize a foreign nation’s status, doing so in this case about perhaps the most hotly debated foreign-affairs issue in American history: who owns Jerusalem. The court’s decision will only turn up the heat on the issue.
The matter came before the justices rather mundanely. In 2002, the parents of Menachem Binyamin Zivotofsky, an American boy born in Jerusalem, asked embassy officials in Tel Aviv to list “Jerusalem, Israel” as the place of birth for their son. The officials denied the request, on the grounds that it was State Department policy to only list “Jerusalem.” The parents later sued in federal district court in Washington, D.C., arguing that a law Congress passed shortly before their son’s birth overrides the policy.
But even George W. Bush had problems with the law when he signed it. Since he couldn’t line-veto things, he issued a signing statement expressing that he’d only construe it as advisory, not mandatory, because it “would impermissibly interfere with the President’s constitutional authorities to conduct the Nation’s foreign affairs.”
The case got so heated that it actually made it to the Supreme Court once in 2012. There, though, the court simply ruled that the Zivotofskys’ claim didn’t involve a “political question” — which courts typically dismiss — and sent the case back to the lower court for a determination of whether they had a right to list “Israel” under the contested 2002 statute.
That statute is no more. In a 5-to-4 decision today, Justice Anthony Kennedy joined the Supreme Court’s liberal wing to rule that the law is unconstitutional because it sought to expand Congress’s “authority over passports … at the expense of another branch,” which “in the context of a formal recognition determination is to allow Congress to exercise that exclusive power itself.”
Kennedy is known for such grand statements. But he kept going:
“Recognition is a topic on which the Nation must speak … with one voice. That voice must be the President’s. Between the two political branches, only the Executive has the characteristic of unity at all times. And with unity comes the ability to exercise, to a greater degree, decision, activity, secrecy, and dispatch. The President is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition.”
That’s a tour-de-force conclusion no matter how you look at it. Not just for what it means generally for the separation of powers, but also for what it means specifically for the unending peace process in the Middle East. By taking the president’s side, the court affirmed his stance of not taking a side.
Kennedy is the perfect justice to do that. He tends to take great pains to be balanced, and here he did a number of things to get there: He examined the Constitution’s text, the court’s own precedents, historical treatises, friend-of-the-court filings by legal scholars, and statements by presidents past and present. Here’s the Obama line that got a nod: “Ultimately, it is the Israelis and the Palestinians, not us, who must reach agreement on the issues that divide them,” including “Jerusalem.”
To the delight of legal geeks, Kennedy also analyzed a favorite of constitutional-law professors, Youngstown v. Sawyer, a 1952 opinion that set up a three-part test for how to determine the scope of presidential power under the Constitution. Its explanation is lengthy, but stated simply, the test requires courts to determine whether the executive branch’s power is “exclusive” and “conclusive” on the issue at hand. And when it comes to the recognition of sovereign nations, the Supreme Court ruled, the president controls.
All of this, of course, comes on the heels of recent acts by Congress evincing defiance for the president’s prerogatives in foreign affairs — like House Speaker John Boehner’s invitation to address Congress and Senator Tom Cotton’s letter to Iran leaders during nuclear negotiations. The Supreme Court, at least tacitly, would seem to have a problem with those moves as well.
But Congress isn’t exactly chopped liver, either. The justices recognized its power to declare war, to cut deals with foreign nations under the Commerce Clause, and to set up rules of citizenship for foreign nationals. And it can also override the president when it comes to treaties, funds for embassies, and the appointment of ambassadors. But the recognition game is the president’s to play, and “Congress may not qualify it,” though it certainly can “make policy determinations that precede and follow the act of recognition itself.”
All of this came with the usual caveats: “Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues in current international affairs,” Kennedy wrote.
For all of this careful language, there are signs that Zivotofsky was not an easy ruling to make. For one, the case is the oldest one left on the court’s docket — the justices heard arguments in November, and a few commentators suggested the delay meant a tie-breaking opinion by Kennedy and multiple pronouncements by other members of the court.
And that’s precisely what happened. The court issued five opinions in the case — the majority’s plus the lead dissent by Chief Justice John Roberts and others by Justices Scalia and Thomas, who actually partially agreed with Kennedy’s bottom line. And Justice Breyer also filed a short statement noting this was a “political question” that courts shouldn’t have to decide, but joined the majority in favor of the executive branch anyway. All of this required 93 pages.
The court’s conservatives, for their part, weren’t having it. Roberts denounced that the court had never before accepted a president’s “direct defiance of an Act of Congress in the field of foreign affairs.” Thomas assailed the majority’s “faulty analysis” and would’ve simply ruled for the president on a much narrower basis. And Scalia, who reportedly read his dissent from the bench this morning — this only happens once or twice per term — basically found no problem with the president and Congress having “freedom to contradict the other’s policies” — in other words, let them disagree. In the process, Scalia disagreed with Thomas, noting that his conservative colleague’s reasoning would result in “a presidency more reminiscent of George III than George Washington.” The summer recess can’t come soon enough for the justices.
Though Zivotofsky marks the end of the road for the boy whose birthplace was stuck in the courts for nearly 12 years, the case is sure to give a little boost to President Obama as he fields ongoing attacks from Congress that he’s acting unilaterally — in areas such as immigration, climate change, net neutrality, and other matters where lawmakers can’t seem to get their act together. The Supreme Court didn’t speak with one voice, for sure, but it recognized the president could — at least when it comes to the status of Jerusalem.
