As described in yesterday's post, the issue in this case is whether Congress may order the President to treat Jerusalem as part of Israel - at least in the context of identifying American citizens' place of birth on passports. When American citizens are born in Jerusalem the State Department typically lists their place of birth as "Jerusalem," not wishing to takes sides in the dispute about sovereignty over that city. In 2002 Congress enacted a statute ordering the State Department to allow people born in Jeruslame to have their passports say that they were born in "Israel" instead of "Jerusalem."
The case does not turn upon any individual constitutional right to determine one's country of origin. Instead, it turns on a question of Separation of Powers: does Congress have the power to control this aspect of foreign affairs, or does the President have the sole and exclusive power to make this decision? Before reaching that issue the Court will have decide whether the case poses a legal question or a political question.
Today's post summarizes what occurred during oral argument in this case. Attorney Nathan Lewin argued the case on behalf of petitioner Zivotofsky; the federal government was represented by Solicitor General Donald B. Verrilli.
At the beginning of Attorney Lewin's presentation Justice Kagan asked him what enumerated power Congress was exercising when it enacted the 2002 statute regulating what the passport should say about a person's place of birth. Lewin replied that Congress was simply exercising its power to regulate the content of passports. Justice Alito interrupted with this question:
JUSTICE ALITO: Do you think it's relevant that the title of section 214 is "United States Policy With Respect to Jerusalem as the Capital of Israel"?Ouch! Right out of the box two justices seem to imply that this was not some technical, ministerial regulation going to form - a "necessary and proper" regulation of some power granted to the Executive Branch - but rather a law meddling in the conduct of foreign affairs. That set the theme for the entire oral argument.
Justice Ginsburg piled on by pointing out a contradiction in Lewin's position:
JUSTICE GINSBURG: You say foreign relations is a shared power. So, if it is a shared power, why does Congress trump the executive?Left unsaid in Ginsburg's question is the long tradition that in the field of foreign affairs the President alone speaks for the United States. Congress has the enumerated power to regulate commerce with foreign nations, and the Senate has the power to ratify treaties and confirm the appointment of ambassadors, but otherwise the conduct of foreign policy has traditionally been committed to the Executive Branch. A "shared power" over foreign relations would be a break with tradition in and of itself; recognition of a dominant power in Congress to direct foreign relations would be to turn constitutional history on its head.
Justice Kennedy then asked a series of questions in which he indicated that he was dubious about the petitioner's claims of a power in Congress to direct foreign relations:
JUSTICE KENNEDY: Under your theory, what foreign relations determinations are for the President alone to make?At this point and many times thereafter Lewin argued that under Justice Robert Jackson's tripartite theory of Separation of Powers from the case of Youngstown Sheet & Tube v. Sawyer, when the President acts in defiance of a Congressional statute the President's power is at its "lowest ebb," and that in such a case the President's action is constitutional only if the Constitution vests the President with sole power over the subject. If the subject matter involves a power that is shared by both the President and Congress, the President is disabled from acting without congressional approval.
MR. LEWIN: Foreign relations determinations are not left to the President alone.
JUSTICE KENNEDY: Are there any foreign relations determinations that are for the President alone to make under your theory of the case?
MR. LEWIN: Yes, Justice Kennedy.
JUSTICE KENNEDY: And those are?
MR. LEWIN: Those are diplomatic communications. In other, it's the President who makes -
JUSTICE KENNEDY: In other words, who gets the telegram or something?
MR. LEWIN: Well, who issues the communication to the foreign government, who determines -- there are certain things that the President alone does because he's the one who implements foreign policy.
JUSTICE KENNEDY: Is there any treatise writer or decision of this Court that supports such a narrow, crabbed interpretation of the President's foreign affairs power?
This claim was met with skepticism by the members of the Court. Justice Kennedy had this response:
JUSTICE KENNEDY: -- in part the Jackson tripartite division, this famous division he had, I think assumes the validity of the congressional statute at the first step of inquiry. And here that's the whole question.Justice Sotomayor asked how far Congress could go in controlling the actions of the President with respect to sovereignty over Jerusalem; Attorney Lewin's answer indicates that he thought Congress has the power to govern this situation:
JUSTICE SOTOMAYOR: What happens if there's a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem? Is the President free to stop listing Israel on the passport?Sotomayor characterized this as "hobbling" the President in the conduct of foreign affairs. In answer to a later question from Justice Sotomayor Lewin indicated that Congress not only has the power to regulate what a passport says about a citizen's place of birth, it also has the power to recognize foreign governments. That is an extreme position that the justices are not likely to agree with. Justice Scalia followed up this this observation:
MR. LEWIN: If -
JUSTICE SOTOMAYOR: Or does he have to wait for Congress to change the law? MR. LEWIN: I think he does have to wait for Congress to change the law.
JUSTICE SCALIA: Mr. Lewin, you're -- it seems to me you're not arguing for a co-equal congressional power; you're arguing for a superior congressional power. You're saying whatever Congress says, the President has to comply with. Now, that's quite different from saying that they both have authority in the field. And if they both have authority in the field and they're exercising it in different fashions, I frankly would not be inclined to intervene.In other words, if this is truly a matter of "shared power" as the Zivotofskys' claim, it is a "political question" and the courts do not have jurisdiction to rule on behalf of the Zivotofskys.
Precedent did not avail the petitioner. When Lewin cited Medellin case Chief Justice Roberts distinguished that case on the ground that that case involved a non-self-executing treaty that purported to override state law treatment of criminal defendants. When Lewin cited Youngstown again Justice Scalia and Justice Kennedy distinguished that case on the ground that it involved the President's seizure of the domestic steel industry to help a war effort. Neither of those cases involved a matter purely foreign to the United States, nor did they deal with the power to recognize foreign governments.
When Lewin argued policy - that Congress' action in this case did not really interfere with the conduct of foreign affairs - Chief Justice Roberts suggested that he was asking the courts to second guess the President's judgment regarding effect of this statute on foreign peoples:
CHIEF JUSTICE ROBERTS: And so, we're supposed to decide whether or not the executive is correct in saying that it's a significant problem. And he says, well, he says that, but we know foreign policy better; we don't think it's going to be a big deal.
Lewin then retreated from his position that Congress has the co-equal power to conduct foreign policy and reverted to his original argument that by means of this law Congress was simply determining how people are to be identified - that it was an identification statute. Alito jumped on that assertion, and Lewin's response that this involves a matter of "self-identification":
JUSTICE ALITO: But are you suggesting Congress enacted this because they thought that if these individuals' passports simply said "Jerusalem," there would be an identification problem? MR. LEWIN: Not be -- Justice Alito, it's not because there would be an identification problem. But there was -- Congress recognized that with regard to the 50,000 people who have a passport that says "Jerusalem," they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification.That, my friends, is not a winning argument in a case involving the Separation of Powers. If there were a constitutional right to "self-identification" then that argument might work, but individual preference has nothing to do with the question whether Congress or the President has the power to determine whether or not Jerusalem is part of Israel.
It was noted that people born in Jerusalem before 1948 had the option to have their passports indicate their place of birth as "Palestine." The 51-year-old Justice Kagan then showed her youth:
JUSTICE KAGAN: Well, you have to be very old to say "Palestine." MR. LEWIN: Pardon? Pardon? JUSTICE GINSBURG: Not all that old. (Laughter.)Mr. Lewin did not address the issue that the Court of Appeals decided this case on: that this was a "political question" and that the federal courts therefore lacked jurisdiction to decide the case.
Solicitor General Verrilli had a much easier time on oral argument. Verrilli also addressed the merits of the case and offered numerous examples from American history. Verrilli relied first upon events during the administration of George Washington to support the proposition that the power to recognize foreign governments lies in the President alone. Verrilli also invoked the statements of Washington's cabinet members: Thomas Jefferson, Alexander Hamilton, James Madison, and John Jay. He then cited other examples from the administrations of James Monroe, Andrew Jackson, and Woodrow Wilson.
Chief Justice Roberts suggested that it didn't seem to make much difference whether the Court ruled in favor of the President or declared this to be a political question; either way, the President would win. Verrilli agreed. Other justices suggested that it would be more appropriate for the Court not to declare this to be a political question but rather to reach the merits so that they could define how broad the power of the President is to make decisions that are collateral to the recognition of a country's sovereignty over a city or piece of land.
Like Lewin, Verrilli took a strong position on the constitutional authority of the President to recognize foreign countries. Lewin had said that Congress has the final say, but Verrilli placed this power solely in the President:
GENERAL VERRILLI: Our position, Justice Ginsburg, is that the recognition power is exclusive to the President.Justice Scalia challenged Verrilli's assumption by proposing a model of a weak President in the field of foreign affairs:
JUSTICE SCALIA: Our cases say repeatedly that the President is the sole instrument of the United States for the conduct of foreign policy, but to be the sole instrument and to determine foreign policy are two quite different things. ... He's the instrument, but there is certainly room in those many cases for saying that Congress can say what the ... country's instrument is supposed to do.This is a "messenger boy" model of Presidential power over foreign affiars. It concedes that only the President may speak for the nation, but suggests that he must say what Congress tells him to say. It was appropriate for Justice Scalia to raise this question since it seems to reflect the position of the petitioner, but I doubt that it reflects the justice's own position or the position of any member of the Court.
Justice Kagan asked Verrilli what passage in the Constitution grants the President the power to recognize foreign governments. Verrilli pointed to the portion of Article II that provides that the President has the power to "receive ambassadors." Justice Kagan expressed surprise that the government relied so heavily on this specific power that she described as "a purely ministerial function." Justice Scalia agreed that this clause of the Constitution "doesn't say a whole lot." Verrilli obviously relied more heavily upon history and tradition rather than textual analysis, and conceded that the government would have made the same claim to exclusive power over the recognition of foreign countries even if the Constitution were silent about the matter.
Justice Alito pressed Verrilli on the question whether this law simply regulated the content of passports. Verrilli challenged the assumption that Congress has the exclusive power to determine the content of passports, and that in any event this particular statute trenches upon the exclusive power of the President to recognize foreign countries.
Verrilli's argument closed with a discussion with the justices about whether the Court should dismiss this case as a political question (this leaving this matter without a final judicial determination) or whether it should uphold the President's power to decide matters relating to the recognition of foreign countries.
On rebuttal, Attorney Lewin returned to the argument that this statute was a passport law and that this case was controlled by Justice Jackson's reasoning in Youngstown Sheet & Tube. There were very few questions directed to him on rebuttal.
My impression from oral argument is that the members of the Court are determined to uphold the authority of the President to decide (or refuse to decide) what country Israel is in for purposes of American foreign policy and that they will not brook Congress' attempt to make that decision. It also appears that they would prefer to decide this case by reaching the merits rather than by dismissing the case for presenting a nonjusticiable political question.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.