nationalsecuritylaw Zivotofsky v. Secretary of State (D.C. Cir. July 23, 2013) (holding that president holds exclusive power to recognize foreign nations)

July 25, 2013

An interesting and important decision by the D.C. Circuit earlier this week (panel opinion by Henderson joined by Rogers, with concurring opinion by Tatel). Posted here:$file/07-5347-1447974.pdf. Key passages:

Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, requires the Secretary (Secretary) of the United States Department of State (State Department) to record “Israel” as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian so requests. Id.§ 214(d), 116 Stat. at 1366. The Secretary has not enforced the provision, believing that it impermissibly intrudes on the President’s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. We agree and therefore hold that section 214(d) is unconstitutional.

[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. Both parties agree that this case falls into category three. In this category the President may nonetheless exercise—and the Congress cannot invade—the President’s “exclusive power.” 637 n.4. The question here is whether exclusive Executive branch power authorizes the Secretary to decline to enforce section 214(d).

We first address the recognition power and, in particular, whether the power is held exclusively by the President.

Having reviewed the Constitution’s text and structure, Supreme Court precedent and longstanding post-ratification history, we conclude that the President exclusively holds the power to determine whether to recognize a foreign sovereign.

Having concluded that the President exclusively holds the recognition power, we turn to the “passport power,” pursuant to which section 214(d) is alleged to have been enacted. We must decide whether the Congress validly exercised its passport power in enacting section 214(d) or whether section 214(d) “impermissibly intrudes” on the President’s exclusive recognition power. Zivotofsky V, 132 S. Ct. at 1428.

The question we must answer, then, is whether section 214(d)—which speaks only to passports—nonetheless interferes with the President’s exclusive recognition power. Zivotofsky contends that section 214(d) causes no such interference because of its limited reach, that is, it simply regulates one detail of one limited type of passport. But the President’s recognition power “is not limited to a determination of the government to be recognized”; it also “includes the power to determine the policy which is to govern the question of recognition.” Pink, 315 U.S. at 229. Applying this rule, the Pink Court held that New York State policy was superseded by the Litvinov Assignment when the policy—which declined to give effect to claims under the Litvinov Assignment—“collid[ed] with and subtract[ed] from the [President’s recognition] policy” by “tend[ing] to restore some of the precise impediments to friendly relations which the President intended to remove” with his recognition policy. Id. at 231.

With the recognition power overlay, section 214(d) is not, as Zivotofsky asserts, legislation that simply—and neutrally—regulates the form and content of a passport. Instead, as the Secretary explains, it runs headlong into a carefully calibrated and longstanding Executive branch policy of neutrality toward Jerusalem.

[W]e are not equipped to second-guess the Executive regarding the foreign policy consequences of section 214(d). See, e.g., Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)…see also Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988) … As the

Executive—the “sole organ of the nation in its external relations,” Curtiss-Wright, 299 U.S. at 319—is the one branch of the federal government before us and both the current Executive branch as well as its predecessor believe that section 214(d) would cause adverse foreign policy consequences (and in fact presented evidence that it had caused foreign policy consequences), that view is conclusive on us. Cf. United States v. Nixon, 418 U.S. 683, 710 (1974) (“[T]he courts have traditionally shown the utmost deference to Presidential responsibilities . . . . involving foreign policy considerations . . . .”).