The Battle Over Jerusalem

Richard Epstein*

Richard Epstein

Richard Epstein

Some of the largest legal battles that make their way to the Supreme Court turn on a single word. That is surely true of the recent case of Zivotofsky v. Kerry, where the Court had to decide whether Menachem Zivotofsky’s parents could insist that their son’s American passport list “Jerusalem, Israel,” as his place of birth, instead of just “Jerusalem.” To add “Israel” would have required the State Department to acknowledge to the world that Jerusalem is that country’s capital.

In a sharp split of opinion, Justice Kennedy, joined by the four liberal justices (Ginsburg. Breyer, Kagan, and Sotomayor) plus Justice Thomas, (writing for himself) held that Congress could not require the President, through the State Department, to add “Israel” at the Zivotofsky’s request. The remaining three conservative justices (Roberts, Scalia, and Alito) all thought that this decision ultimately fell to Congress.

This case raises some interesting questions. First, why all of the fuss over a single word, “Israel,” being added to someone’s passport? Second, why did most of the conservative justices defer to Congress on this decision, rather than delegate the power to the president? Conservatives, after all, tend to favor broad presidential powers in foreign affairs.

The historical story starts in 1948 when President Harry Truman first provisionally recognized Israel as a separate sovereign nation. In January 1949, the White House recognized Israel on a de jure basis. On both occasions, Truman refused to recognize Jerusalem as Israel’s capital. Instead, he insisted that “the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.”

It is inconceivable that any voluntary settlement of the Israeli/Palestinian conflict would require that the Israelis cede Jerusalem to the Palestinians. Similarly, if a settlement were reached, it is inconceivable that the Israelis would be precluded from setting up their capital in that part of Jerusalem that has remained under its control. Be that as it may, Truman’s decision has been the unbroken executive branch position on the topic, through Republican and Democratic administrations alike. At no point did Congress take any formal role in the recognition process.

By 2003, the executive branch’s guarded position did not sit well with the Congress, which included in the “Foreign Relations Authorization Act, Fiscal Year 2003” a proviso that stated that for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” President George W. Bush signed the bill subject to a signing statement that challenged Congress’s effort to encroach on his powers over foreign affairs. Who prevails in this test of wills?

First, this arcane debate is not and should not be construed as a debate over the proper U.S. stance toward Israel. The question up for grabs is the distribution of powers between the executive and legislative branches. The same constitutional quandary would have arisen if the President had wanted to let American citizens write “Jerusalem, Israel,” on their passport, and Congress had passed legislation to block it.

The basic techniques of constitutional interpretation always look to the text, structure, and practice to resolve disputes. Unfortunately, any fair-minded reading of the available constitutional texts quickly reveals that neither Congress nor the President has any clear textual warrant to discharge a function, issuing passports, that one of them of necessity must control for the government to function. In Zivotofsky, Justice Kennedy accepted Secretary of State Kerry’s position that the President’s power to “receive ambassadors” necessarily carried with it the power to decide which nations could send them, and thus grants the President control over the entire process of recognizing foreign nations. That textual argument is a large stretch. In his short but pithy dissent, Chief Justice Roberts quotes Alexander Hamilton, who noted that the relevant clause imposes a duty on the President that “is more a matter of dignity than of authority.”

Indeed, presumably receiving ambassadors could be subject to some bilateral treaty under which Article II, Section 2, of the Constitution does not give the President sole control over the matter. Quite the opposite, it provides: “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

The Senate, but not the Congress, has an explicit check on the President that is inconsistent with any extensive claim that the President has exclusive and preclusive control over foreign affairs. Take it one step further: close to half of the enumerated powers of Congress in Article I, Section 3, relate to foreign affairs and military operations, including those that limit the President in his role as “commander-in-chief.” Article II of the Constitution instructs the President to “take care that the Laws be faithfully executed,” which speaks more to his subservience to Congress than it does to his independence.

Unfortunately, the textual arguments on behalf of Congressional power are every bit as tenuous. Just where is that power found? Justice Scalia acknowledged that Congress does not have plenary power to pass whatever legislation meets its fancy. He therefore sought to identify its textual source of power over passports. One candidate is the power of Congress “to regulate commerce with foreign nations.” Unfortunately, passport control for American citizens has a lot less to do with foreign commerce than with tariffs and trade. Nor does passport control relate to Congress’s power of naturalization, which deals with making aliens citizens, not granting passports to American citizens.

All textual arguments fail, so it is on to constitutional structure. But once again, the arguments on both sides are weak. One common trope is that the President has to be able to act with dispatch and to speak with a unitary voice on behalf of the nation in international affairs. Thus any official statement about what counts as the capital of Israel could necessarily complicate negotiations with foreign nations on matters of matters of trade, war, and peace. Indeed, in United States v. Curtiss-Wright Export Corp., decided in 1936, Justice Sutherland, in unnecessary dicta, went to great lengths to insist that the President of the United States received his powers directly from the King of Great Britain, and need not brook any interference at all.

Nonetheless, the pesky treaty power and Congress’s power to declare war undermine this extravagant claim. Indeed, during the Korean War in Youngstown Sheet & Tube v. Sawyer, President Truman was rebuffed by the Supreme Court when he unilaterally sought to seize steel mills that he regarded as essential to the war effort when their production was threatened by labor disputes. Justice Jackson’s three-part test on presidential power is widely cited. It puts presidential power at its highest when Congressional authorization backs his position. The scope of that power is uncertain whenever Congress is silent on any particular matter. But it is at “its lowest ebb” when the President bucks a Congressional prohibition.

On this view, the President had the right to move in the field that Congress had left unoccupied in order to have the United States participate in foreign affairs. But once Congress speaks, checks and balances stymie unilateral presidential action. Justice Scalia elaborated on this argument by appealing to the original constitutional structure of divided power, which controlled before it was undercut by the New Deal’s expansion of the administrative state.

Justice Kennedy, however, took the view that past practice dominated any uncertain inferences from structure. Recall that Truman ran the entire recognition proceedings over Israel out of the White House. Consistently, every president from both parties had asserted strong control over foreign affairs. So Kennedy and his liberal colleagues used past practice to give the nod to a consistent President over a wavering Congress.

It is very hard to reach clear results whenever constitutional structure is at war with historical practice. The point is of real urgency because the acceptance of judicial supremacy in constitutional interpretation is based solely on practice, for the text is reasonably clear, in line with the historical understanding of the time, that all federal branches are equal and coordinate on matters of constitutional interpretation. It is equally clear that the Supreme Court’s decisions trump those of any and all state supreme court’s, as in the historical fight over segregation in the south. Dare we switch course after over two hundred years of practice that runs in the opposite direction?

One way to attack this question is to ask whether a reversal of the past practice would throw a serious monkey wrench into this nation’s structure. Getting rid of judicial supremacy over Congress, the President, and the states is too risky generally. But the stakes are not nearly as high with passport recognition. Justice Breyer wrote a one-paragraph opinion, in which he announced that he continued to believe that the whole matter was a political question that the courts should stay out of. The problem with that position is it gives no way to break the logjam if the President just chooses to disregard the congressional command. Is there any bargain that can be reached between the two parties that can resolve the impasse?

Regrettably, once we leave the political question doctrine behind, the constitutional trade-offs do not admit to an easy answer. The need for dispatch in foreign affairs is evident, but if the president is tyrannical or erratic, vesting large chunks of power in him is highly dysfunctional. Alternatively, what if Congress is divided, dilatory, and confused? The question then is which of these vices is greater? On balance, I would reluctantly side with the liberals (plus Justice Thomas) given the strength of the past practices.

Yet this conclusion does not go down easily. When the matter comes to waging wars and conducting diplomatic negotiations, the sad truth is that Congress wishes to lay low and let the President take all the blame when matters go wrong. In these cases, expedition of action seems to be preferable, so that the ideal response in general is to give broad authorizations to the President to deal with these conflicts. Yet these generalizations are dangerous. President Obama is the master of vacillation on foreign affairs, given his utter inability to formulate a coherent policy to deal with ISIS, Iran, and Iraq, not to mention the Israel-Palestine conflict.

So it is easy to see in Zivotofsky why the constitutional split emerged. All institutional choices involve either explicit or implicit tradeoffs. In dealing with most matters of domestic import, it is usually possible to develop a coherent theory of government powers and structure. The Framers did just fine when on individual rights they stressed the importance of limited government, strong property rights, and constrained powers of taxation and regulation, all within a federalist system marked by enumerated and divided powers in the national government.

But there are no easy global institutional judgments about foreign affairs, where discrete decisions count as much as general policies. In foreign affairs, structural constraints operate fitfully at best. James Madison rightly feared factions in Federalist No. 10. While it may be possible to write constitutional protections against debtor relief legislation, it is a lot harder to anticipate constitutionally the best structure for preventing nuclear proliferation or transnational cyber terrorism.

On foreign affairs, the gaps in the Constitution require some measure of cooperation between the Congress and the President to avoid costly and lengthy confrontations that do the nation little or no good. No amount of constitutional theory or interpretation can fill the void created by weak leadership at both the presidential and congressional level. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.