Why the Court should uphold Congress’s power in the Jerusalem Passport case

April 24, 2014

I am not thrilled that the Supreme Court granted certiorari in the Jerusalem Passport Case, Zivotofsky v. Kerry. I continue to think the case is non-justiciable (though not for political question grounds rejected by the Court in their prior encounter with the case), for reasons I will explain in a subsequent post. But I’ve increasingly taken a more generous view of the separation of powers merits.

Recall that Congress passed a law requiring “Israel” to be listed as the country of birth of those Americans born in Jerusalem, but a series of presidents have refused to so, simply letting it say “Jerusalem,” without a country. President Obama claims that complying with the law could have disastrous foreign policy consequences, and possibly lead to war (which itself might be a reason to think the decision belongs to Congress).

The case is widely seen as one about the recognition power, and it is widely thought that the President has a primary role in matters of “recognition.” Recognition comes in two flavors – recognizing countries as sovereign entities and the regimes that run them as proper governments. But the Jerusalem flap involves neither. Congress and the President agree that Israel exists and what its legitimate government is. (And the Executive has been inconsistent in its denials of Jerusalem’s location.)

Nor is this about the terms on which recognition is granted. The question here is an unusual one – the President agrees Israel exists, but just does not want to say that Jerusalem is in it. This is more one of border determination – is West Jerusalem in the recognized country of Israel, or in no country, as the executive sometimes maintains. Seen this way, the issue does not fall within the classic recognition paradigm, and we must consider how the various powers of the branches bear on this question.

Thus the President is not really relying on his recognition power, but on a more general foreign relations power. This power exists, but on the other hand, Congress also points to an enumerated power – Immigration and Naturalization.

It seems that Congress must be able to make determinations about what country places are in to exercise its constitutional powers. Take the War Power. Imagine Congress declares war on Vietnam. It would seem the president could not justify bombing Laos by saying he has decided that Laos is in Vietnam. Congress’s power to declare War on countries necessarily involves a power to determine what places are in those countries and which are not. Otherwise, any declaration of war would be a global blank check to the president.

Or imagine if Congress passed a law, pursuant to its Foreign Commerce power, eliminating tariffs from products from China. The Executive could not continue to apply tariffs to products from, say, Tibet, on the grounds that he thinks it is not really part of China (especially Congress clearly included Tibet).

In short, any legislative power regarding foreign matters requires Congress to be able to make territorial determinations about the countries to which it applies. Immigration seems to be a reasonable application. Congress wants to have certain visa rules for some countries and not others. To make such a regime work, it needs to be able determine what places are in what countries. Lets say Congress adopts a liberal visa regime with China. If the Executive does not apply it to Tibet, or the territory of the former Second East Turkmen Republic, Congress’s legitimate and normal exercise of its powers would be nullified.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.
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