Saturday, June 20, 2015

A (Belated) Comment on Zivotofsky's Significance

Stephen Griffin

Belated, that is, compared to the many posts that have already appeared.  But since it’s still June, I don’t think a comment on Zivotofsky (the Jerusalem passport case), one of the most important presidential power and foreign affairs decisions in recent years, is overdue.  Zivotofsky strikes me as significant in several respects.  On a methodological level, it again confirms the Court’s attachment in presidential power and foreign affairs cases to Justice Jackson’s concurrence in Youngstown.  Well, was anyone questioning this?  Just as recently as the Bush II administration, of course!  Indeed, on the occasion of its fiftieth anniversary in 2002, Youngstown was credibly described as a decision executive branch lawyers didn’t want to acknowledge.  But for better or worse, Jackson’s concurrence is now a “fixed star” in our constitutional constellation, to borrow his phrase from another context.  And the Court’s consistent appeal to Jackson’s concurrence has ripple effects for the law as a whole, especially given the relative paucity of precedents in the area of foreign affairs.  Zivotofsky certainly has implications for how casebooks treat the relevance of both Youngstown and Curtiss-Wright.  It is also relevant that the Court felt it was unnecessary to come to grips with the popular “vesting clause” argument with respect to executive power.  An endorsement of this argument would have brought the opinion into considerable tension with Jackson’s concurrence.

But the Court went much further to reject specifically the idea that Curtiss-Wright supports broad presidential powers over foreign affairs.  So as a general matter, Zivotofsky sounds the death knell for the “sole organ” doctrine.  It brings to a close the Reagan era “Curtiss-Wright so I’m right cite.”  Quite a development, at least compared to what students are typically told in casebooks and what scholars have been repeating in treatises and articles for decades.  The Court limits the Curtiss-Wright holding in exactly the same way as skeptics of broad claims of executive power in saying that the presidential power in question was exercised by FDR pursuant to a delegation from Congress.  Following up on the logic of the Court’s opinion in Hamdan v. Rumsfeld and his own concurrence in that case, Justice Kennedy for the majority deliberately chooses to emphasize: “The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.”  He cites in support Little v. Barreme,(!) a key precedent supporting congressional control of presidential power, not merely with respect to “foreign affairs,” but war powers, a strongly contested point in what I have called the post-1945 constitutional order.  Although I wouldn’t say a new day has dawned with Zivotofsky, I would say that the new day has been confirmed.  More after the jump.

A number of commentators have highlighted the idea that Zivotofsky was a big showdown between the President and Congress, with the former the victor.  And the President is said to have prevailed in Jackson’s category three.  But this can be questioned.  The Government’s position was that the case was indeed in category three because the President’s exclusive recognition power was opposed to a 2002 statute.  Yet there are reasons for doubting that this will be read by history as a true “lowest ebb” case.  The Court notes at one point that normally, the political branches have been able to resolve their disputes over the recognition power.  As the Court said, Truman’s recognition of Israel in 1948 did not include a recognition of its sovereignty over Jerusalem.  This treatment of Jerusalem is a well-known diplomatic and political fact, it has been so for decades.  The Court recites that this has been the consistent executive branch position at least since 1967.  Congress of course had knowledge of this and there were communications to Congress from the executive branch to this effect.  In 2002, Congress departed from this understanding – and, as the Court notes, quoting Judge Tatel from the opinion below, apparently for the first time in all of American history!  The record is completely opaque as to why Congress acted as it did.  Further, Congress did nothing to maintain its opposition to the consistent position of the executive branch since 2002.  So the statute appears to have been a one-off.

What this means is that for most of our history with Israel, Congress either acquiesced to or in fact supported the executive branch’s position.  So for most of this history the President was actually in Jackson’s category one.  The Court reinforces the point by noting the instances in which Congress has supported the President’s recognition power throughout American history.  This also suggests that for the most part, exercises of the “exclusive” recognition power have occurred in category one.

In addition, the Court stressed that the exclusive presidential recognition power it was upholding is “formal,” “limited,” and “precise.”  So the opinion is aimed at a very particular target.  One reason might be that, far from being some sort of ultimate constitutional showdown, this was a case that the Court understood as one where Congress had suddenly changed its mind without a discernible rationale.  It forced the President from category one to three – but for no understandable policy reason.  What kind of confrontation is that?  Justice Kennedy also stresses that the law in question required the President to “contradict his own statement.”  In other words, Congress tried to force the President (almost in a very personal way) to reverse himself.  This is reminiscent of Plaut v. Spendthrift Farm, holding that Congress may not force the judiciary to alter a determination in a specific case.

What this all adds up to is that Zivotofsky was a Youngstown category one case masquerading as a category three case.  There was no constitutional showdown because Congress was seemingly interested more in the publicity value of the statute than in actually forcing the executive branch to change its position and living with the diplomatic consequences.  It means that the real significance of the case lies in its rejection of the entire Curtiss-Wright paradigm and the acceptance that, broadly speaking, powers over foreign affairs (including the freighted question of war powers) are shared.  From a historical point of view, again broadly speaking, this is the Court’s final and complete rejection of the Reagan-era (Cheney-era) philosophy of presidential power in foreign affairs.

Finally, with respect to the theory of interpretation, the opinion was an interesting of mix of the standard methods.  Justice Kennedy at one and the same time uses a quasi-original public meaning argument in referring to how public law writers of the eighteenth century would have seen the recognition power from the standpoint of international law, appeals to post-ratification practice in the Washington administration, and Justice Story’s later commentaries.  He then supports this initial presentation of eighteenth century evidence by invoking the different modes of textual and structural argument.  Interestingly, when it comes to the crucial point of why the recognition power is exclusive, Kennedy puts a prudential (or functionalist) argument at the forefront – “the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.”  Historical practice and past judicial precedents are also employed.  I’m not a big fan of the way the Court tends to add up “precedents” from “practice” (or, by the way, instances of congressional “acquiescence”) as if they all have the same relevance.  I believe we need to pay more attention to the significance of historical context and change over time.  But Zivotofsky does show the Court’s acceptance of the legitimacy of multiple methods of interpretation.


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