Law Essay Example: Zivotofsky v. Kerry

Facts of the Case

The plaintiff, Menachem Binyamin Zivotofsky was born to parents who are United States citizens living in Jerusalem, Israel. When Zivotofsky's mother requested a passport for her son reporting of birth abroad and listing the place of birth as Jerusalem, the request was denied. The grounds for the refusal of the passport was because of an existing State Department policy put forth by the US President, which stipulates that a passport could only list Jerusalem as the place of birth. Zivotofsky filed a suit against Secretary of State John Kerry. The plaintiff claimed that Section 214 (d) of the Foreign Relations Authorization Act of 2003 (Act), 116 Stat 1350, allowed citizens born in Jerusalem to list Israel as their place of birth.

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The case was thrown out by the government district court arguing that the plaintiff presented a nonjusticiable political question of the US President's State Department Policy and lack of grounds for the case. The plaintiff was forced to make several appeals. The political question determination was affirmed by the court of appeals, but the standing issue was reversed. based on the US Supreme Court ruling certiorari was granted power to review and remanded the case to the courts of appeals to determine whether the plaintiff correctly interpreted Section 214 (d). Additionally, the courts of appeal were required to determine whether the statute was constitutional. The argument of whether Jerusalem is part of Israel was ruled out by the US Supreme Court.

Summary of the Ruling and Majority Opinion

Justice Kennedy and four others found out that "the President has the exclusive power to grant formal recognition to a foreign sovereign," and that "the Congress does not have the power to Command the President of his Secretary of State to issue a formal statement that contradicts the first recognition." The majority ruling was based on the summary of Justice Jackson's Youngstown framework that divided exercises of Presidential power into three classifications. In Zivotofsky v. Kerry, category three of the framework which states that "the President takes measures incompatible with the expressed or implied will of the Congress... he can rely only upon his constitutional powers minus any constitutional powers if the Congress over the matter" applied to the case. The court agreed o following this framework after it examined "the Constitution's text and structure, as well as precedent and history bearing on the question."

The five majorities established that there is a doctrine under the international law governing the President's act of recognition involving "the determination of a state's territorial bounds" among other issues. Next, Justice Kennedy argued that the President is allowed to receive Ambassadors and other public ministers under the Receptions Clause of Article II could be understood to acknowledge his authority to recognize other nations. The President's power as presented in Article II supported this conclusion, particularly in regards to the power of appointing ambassadors and making treaties. The majority concluded that the President's authority to appoint ambassadors and make treaties showed how the constitution "assigns the President means to affect recognition on his initiative. By contrast, Congress has no constitutional power to enable to initiate any diplomatic relations with a foreign nation."

Justice Kennedy included additional reference to support the argument for an exclusive power of recognition by the President. He argued that "recognition is a topic on which the Nation must speak with one voice." The 'one voice' must always be the President's because he is the head of the Executive arm of the government which has the traits of unity at all times. This holding was also supported by history regardless of past Supreme Court's cases being equivocal. Notably, the history is not all in one side but "on balance, it provides strong support for the conclusion that the recognition power is the President's alone."

The last four pages of the majority ruling were spent presenting the opinions of the Court on the second issue raised by the case: "whether 214 (d) infringes on the Executive's consistent decision to withhold recognition with respect to Jerusalem." The majority maintained that while Section 214(d) did not directly change the recognized authority of the Executive, it "forced the President to contradict his earlier statement." Furthermore, if the authority over recognition means anything to the different arms of the government, Justice Kennedy argued that "it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent's statements." This is to mean that by altering the President's statement on matters recognition, the Congress would act in effect exercise the recognition power against what the Constitution stipulates.

Accordingly, the Court ruled that Section 214 (d) was an unconstitutional interference with the President's exclusive recognition power.

Summary of Concurring Opinions

Justice Thomas agreed in the judgment in part and dissented in part. He argued that even if the recognition power was exclusive, it was insufficient to decide the question brought forward conclusively. He also viewed the Section 214 (d)'s provisions for a passport were unconstitutional as they challenged the President's foreign affairs powers without any constitutional power. In his opinion, Justice Thomas perceived that certain foreign affairs powers were expressly allocated to either the President or Congress by the Constitution. He wrote that "These specific allocations, however, cannot account for the entirety of the foreign affairs powers exercised by the Federal Government." According to Justice Thomas, Article II of the Constitution prescribes unenumerated powers to the President through the Vesting Clause which specifies that "the Executive power shall not be vested in a President of the United States." the Judge noted the difference between Vesting Clause under Article II and Article I which states that "all legislative Powers herein granted shall be vested in Congress."

Justice Thomas reasoned that the original understanding at the Founding could be used as an interpretation of the textual difference. Additionally, post-ratification history supported his argument. On the case brought by Zivotofsky against Secretary John Kerry, Justice Thomas made the conclusion that "Because the President has residual foreign affairs authority to regulate passports, and because there appears to be no congressional power that justifies Section 214 (s)'s application to passport, the plaintiff challenges to the Executive's designation of his birthplace on his passport must fail." If history is anything to go by, various Presidents have repeatedly exercised their power to issue passports. Furthermore, the Congress did not identify any source of enumerated congressional power when it passed Section 214 (d). Justice Thomas noted that "the Constitution does not have Passport Clause, nor does it explicitly vest Congress with 'plenary authority over passports.'"

The Judge made his final comment by distinguishing Section 214 (d)'s consular report of birth from its passport provisions unlike the latter, the former has a primary domestic purpose and therefore, does not implicate the President's power over foreign relations.

For this reason, Justice Thomas found it to be more closely linked to Congress's enumerated power over naturalization. He wrote, "Section 214(d) can be constitutionally applied to consular reports of births abroad, but not passports." The majority had affirmed that "the plaintiff waived any argument that his consular report of birth abroad should be treated differently than his passport." This conclusion did not "engage in a separate analysis of the validity of Section 214(d) as applied to consular reports of birth abroad."

Justice Alito joined Chief Justice John Roberts in a separate dissent in which he argued that the President should exercise the power of the Constitution "conclusively and preclusively" that is granted to the Executive arm for him to ignore the express the will of the Congress. Additionally, Chief Justice Roberts maintained that the power granted by the Constitution for the President to recognize foreign states was neither conclusive nor preclusive because precedent and history regarding the power of recognition was at best conflicting. Furthermore, the Chief Justice argued that even if the President had the power of recognition, in this particular case, the statute in question would not be unconstitutional because an arbitrary passport designation does not amount to official recognition.

Evaluation of the Merits of the Competing Arguments in the Majority Opinion

The decision in Zivotofsky v. Kerry was handed down by the Supreme Court on 8 June 2015. As mentioned above, six justices held Section 214 (d) unconstitutional because it invaded presidential powers. The three concurring judges implied an argument that focused on the recognition powers as the exclusive domain of the president. Justice Scalia dissenting statement said, "In the final analysis, the Constitution may well deny Congress the power to recognize the power to make an international commitment accepting a foreign entity as a state, regime as its government, a place as a part of its territory." This implies that the Court almost attained a common argument that the President alone has the power of recognition as vested in him by the Constitution.

The opinions by the two sides were different from the oral arguments in that the former was strictly legal and paid little attention to the substantive questions associated to the status of Jerusalem and the never-ending Israeli/Palestinian conflict. Additionally, all the Justices avoided mentioning of the role of the US in the Israeli-Arab conflict by playing as neutral brokers. According to Cole-Chu (90), legal theory approximately divides judicial opinions into two including formalist opinions and grand opinions. Formalist opinions are expressed when the judges tend to avoid external arguments usually from social sciences. As such, the judges always confine themselves to law signaling that they act as "the mouth of the law" rather than making value judgments individually when interpreting constitutional texts. The technique is usually used where there is a great discomfort on the judges' part when dealing with a case with deep political layers or when the judges feel motivated to protect the decision of the court from external challenges such as being inspired by the judges' partialities. It is quite likely that all the Justices in Zivotofsky v. Kerry case, being mindful of the context and motivation to protect the President's recognition powers decided to adopt the technique.

However, the majority opinion made an effort to address the entanglement of the judiciary in a dilemma. If the plaintiff won this case validating Section 214 (d), the conclusion by many would have been that the Court upheld the congressional verdict that Jerusalem is part of Israel. Therefore, such a ruling would have placed the Congress and the Court on one side of the issue and the President on the other. Toe express the discomfort for being put in such a position, the Court stated that "the Supreme Court is not responsible for recognizing foreign nations."

Conclusion

Section 214(d) presented a legal controversy by reflecting a conflict between two branches of the federal government against each other. In the Court majority ruling delivered by Justice Kennedy, it was argued that the President is exclusively assigned the power to recognize foreign countries.