Zivotofsky v. Kerry,
576 U.S. ___ (2015)

Annotate this Case

SUPREME COURT OF THE UNITED STATES

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No. 13–628

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MENACHEM BINYAMIN ZIVOTOFSKY, by his parents and guardians, ARI Z. AND NAOMI SIEGMAN ZIVOTOFSKY, PETITIONER v. JOHN KERRY, SECRETARY OF STATE

on writ of certiorari to the united states court of appeals for the district of columbia circuit

[June 8, 2015]

Chief Justice Roberts, with whom Justice Alito joins, dissenting.

Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs. We have instead stressed that the President’s power reaches “its lowest ebb” when he contravenes the express will of Congress, “for what is at stake is the equilibrium established by our constitutional system.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 –638 (1952) (Jackson, J.,concurring).

Justice Scalia’s principal dissent, which I join in full, refutes the majority’s unprecedented holding in detail. I write separately to underscore the stark nature of the Court’s error on a basic question of separation of powers.

The first principles in this area are firmly established. The Constitution allocates some foreign policy powers to the Executive, grants some to the Legislature, and enjoins the President to “take Care that the Laws be faithfully executed.” Art. II, §3. The Executive may disregard “the expressed or implied will of Congress” only if the Constitution grants him a power “at once so conclusive and preclusive” as to “disabl[e] the Congress from acting upon the subject.” Youngstown, 343 U. S., at 637–638 (Jackson, J., concurring).

Assertions of exclusive and preclusive power leave the Executive “in the least favorable of possible constitutional postures,” and such claims have been “scrutinized with caution” throughout this Court’s history. Id., at 640, 638; see Dames & Moore v. Regan, 453 U. S. 654 –669 (1981). For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs. See Medellín v. Texas, 552 U. S. 491 –532 (2008); Hamdan v. Rumsfeld, 548 U. S. 557 –595, 613–625 (2006); Youngstown, 343 U. S., at 587–589 (majority opinion); Little v. Barreme, 2 Cranch 170, 177–179 (1804).

In this case, the President claims the exclusive and preclusive power to recognize foreign sovereigns. The Court devotes much of its analysis to accepting the Executive’s contention. Ante, at 6–26. I have serious doubts about that position. The majority places great weight on the Reception Clause, which directs that the Executive “shall receive Ambassadors and other public Ministers.” Art. II, §3. But that provision, framed as an obligation rather than an authorization, appears alongside the duties imposed on the President by Article II, Section 3, not the powers granted to him by Article II, Section 2. Indeed, the People ratified the Constitution with Alexander Hamilton’s assurance that executive reception of ambassadors “is more a matter of dignity than of authority” and “will be without consequence in the administration of the government.” The Federalist No. 69, p. 420 (C. Rossiter ed. 1961). In short, at the time of the founding, “there was no reason to view the reception clause as a source of discretionary authority for the president.” Adler, The President’s Recognition Power: Ministerial or Discretionary? 25 Presidential Studies Q. 267, 269 (1995).

The majority’s other asserted textual bases are even more tenuous. The President does have power to make treaties and appoint ambassadors. Art. II, §2. Butthose authorities are shared with Congress, ibid., so they hardly support an inference that the recognition power is exclusive.

Precedent and history lend no more weight to the Court’s position. The majority cites dicta suggesting an exclusive executive recognition power, but acknowledges contrary dicta suggesting that the power is shared. See, e.g., United States v. Palmer, 3 Wheat. 610, 643 (1818) (“the courts of the union must view [a] newly constituted government as it is viewed by the legislative and executive departments of the government of the United States” (emphasis added)). When the best you can muster is conflicting dicta, precedent can hardly be said to support your side.

As for history, the majority admits that it too points in both directions. Some Presidents have claimed an exclusive recognition power, but others have expressed uncertainty about whether such preclusive authority exists. Those in the skeptical camp include Andrew Jackson and Abraham Lincoln, leaders not generally known for their cramped conceptions of Presidential power. Congress has also asserted its authority over recognition determinations at numerous points in history. The majority therefore falls short of demonstrating that “Congress has accepted” the President’s exclusive recognition power. Ante, at 26. In any event, we have held that congressional acquiescence is only “pertinent” when the President acts in the absence of express congressional authorization, not when he asserts power to disregard a statute, as the Executive does here. Medellín, 552 U. S., at 528; see Dames & Moore, 453 U. S., at 678–679.

In sum, although the President has authority over recognition, I am not convinced that the Constitution provides the “conclusive and preclusive” power required to justify defiance of an express legislative mandate. Youngstown, 343 U. S., at 638 (Jackson, J., concurring). As the leading scholar on this issue has concluded, the “text, original understanding, post-ratification history, and structure of the Constitution do not support the . . . expansive claim that this executive power is plenary.” Reinstein, Is the President’s Recognition Power Exclusive? 86 Temp. L. Rev. 1, 60 (2013).

But even if the President does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition. See Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (Alito, J., concurring in judgment) (slip op., at 1); post, at 5–10 (Scalia, J., dissenting). The relevant provision, §214(d), simply gives an American citizen born in Jerusalem the option to designate his place of birth as Israel “[f ]or purposes of” passports and other documents. Foreign Relations Authorization Act, Fiscal Year 2003, 116Stat. 1366. The State Department itself has explained that “identification”—not recognition—“is the principal reason that U. S. passports require ‘place of birth.’ ” App. 42. Congress has not disputed the Executive’s assurances that §214(d) does not alter the longstanding United States position on Jerusalem. And the annals of diplomatic history record no examples of official recognition accomplished via optional passport designation.

The majority acknowledges both that the “Executive’s exclusive power extends no further than his formal recognition determination” and that §214(d) does “not itself constitute a formal act of recognition.” Ante, at 27. Taken together, these statements come close to a confession of error. The majority attempts to reconcile its position by reconceiving §214(d) as a “mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State.” Ante, at 27. But as just noted, neither Congress nor the Executive Branch regards §214(d) as a recognition determination, so it is hard to see how the statute could contradict any such determination.

At most, the majority worries that there may be a perceived contradiction based on a mistaken understanding of the effect of §214(d), insisting that some “observers interpreted §214 as altering United States policy regarding Jerusalem.” Ante, at 28. To afford controlling weight to such impressions, however, is essentially to subject a duly enacted statute to an international heckler’s veto.

Moreover, expanding the President’s purportedly exclusive recognition power to include authority to avoid potential misunderstandings of legislative enactments proves far too much. Congress could validly exercise its enumerated powers in countless ways that would create more severe perceived contradictions with Presidential recognition decisions than does §214(d). If, for example, the President recognized a particular country in opposition to Congress’s wishes, Congress could declare war or impose a trade embargo on that country. A neutral observer might well conclude that these legislative actions had, to put it mildly, created a perceived contradiction with the President’s recognition decision. And yet each of them would undoubtedly be constitutional. See ante, at 27. So too would statements by nonlegislative actors that might be seen to contradict the President’s recognition positions, such as the declaration in a political party platform that “Jerusalem is and will remain the capital of Israel.” Landler, Pushed by Obama, Democrats Alter Platform Over Jerusalem, N. Y. Times, Sept. 6, 2012, p. A14.

Ultimately, the only power that could support the President’s position is the one the majority purports to reject: the “exclusive authority to conduct diplomatic relations.” Brief for Respondent 18. The Government offers a single citation for this allegedly exclusive power: United States v. Curtiss-Wright Export Corp., 299 U. S. 304 –320 (1936). But as the majority rightly acknowledges, Curtiss-Wright did not involve a claim that the Executive could contravene a statute; it held only that he could act pursuant to a legislative delegation. Ante, at 17.

The expansive language in Curtiss-Wright casting the President as the “sole organ” of the Nation in foreign affairs certainly has attraction for members of the Executive Branch. The Solicitor General invokes the case no fewer than ten times in his brief. Brief for Respondent 9, 10, 18, 19, 23, 24, 53, 54. But our precedents have never accepted such a sweeping understanding of executive power. See Hamdan, 548 U. S., at 591–592; Dames & Moore, 453 U. S., at 661–662; Youngstown, 343 U. S., at 587 (majority opinion); id., at 635, n. 2 (Jackson, J., concurring); cf. Little, 2 Cranch, at 179 (Marshall, C. J.) (“I confess the first bias of my mind was very strong in favour of . . . the executive . . . [b]ut I have been convinced that I was mistaken.”).

Just a few Terms ago, this Court rejected the President’s argument that a broad foreign relations power allowed him to override a state court decision that contradicted U. S. international law obligations. Medellín, 552 U. S., at 523–532. If the President’s so-called general foreign relations authority does not permit him to countermand a State’s lawful action, it surely does not authorize him to disregard an express statutory directive enacted by Congress, which—unlike the States—has extensive foreign relations powers of its own. Unfortunately, despite its protest to the contrary, the majority today allows the Executive to do just that.

Resolving the status of Jerusalem may be vexing, but resolving this case is not. Whatever recognition power the President may have, exclusive or otherwise, is not implicated by §214(d). It has not been necessary over the past 225 years to definitively resolve a dispute between Congress and the President over the recognition power. Perhaps we could have waited another 225 years. But instead the majority strains to reach the question based on the mere possibility that observers overseas might misperceive the significance of the birthplace designation at issue in this case. And in the process, the Court takes the perilous step—for the first time in our history—of allowing the President to defy an Act of Congress in the field of foreign affairs.

I respectfully dissent.

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