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Can Congress declare war on North Korea?

No – at least if the Supreme Court accepts that Government’s position in Zivotosfky v. Kerry, that may be one of the absurd implications.

The amicus brief in support of the Menachem Zivotofsky that Alan Gura and I wrote on behalf of legal scholars and a human rights group makes several basic points that explain the North Korean question above. I’ll mention some highlights here, and tease out some parts in further posts.

1. The Zivotosfky case does not require any constitutional decision about the scope or primacy of Congress’s or the President’s respective roles in recognition. Thus any such constitutional decision should be avoided. This is simply a case about Congress making de facto factual determinations in pursuance of its enumerated powers.

2. The action of Congress in specifying that passports of people born in Jerusalem say “Israel” is not one of recognition as that term is understood at law. Recognition in international and U.S. law refers to two kinds of acts – recognizing sovereign states, and recognizing governments. Both the Sate of Israel and its government – sitting in Jerusalem – are recognized by the U.S. So the present question involves something different – a “geographic” recognition. Even if the recognition proper is an particular executive prerogative, there is no precedent for “geography” being an exclusive executive power. Thus this case differs from all prior discussions of executive vs. legislative prerogatives in recognition, all of which involved actual recognition of states or governments.

3. To exercise the many of its enumerated powers that have extraterritorial scope, Congress must be able to acknowledge the reality of administration and control over foreign territory regardless of disputes concerning the legitimacy of such control. Congress could not effectively exercise these powers if they were subject to presidential nullification for referencing territory that the President wishes to exclude from the scope of the legislative action. When Congress chooses to exercise these powers, it is not bound in how it identifies the territories with which trade, war, or migration will be conducted.

For example, Congress can regulate tariffs and trade with unrecognized territories or those whose sovereignty is not recognized (i.e., West Bank and Taiwan); make war on unrecognized countries (Vietnam); designate federal spending in such places (Western Sahara); and allow immigration from them. Naming an unrecognized place as the object of the exercise of an unenumerated power does not amount to an act of recognition, but rather a means of implementing the legislative power.

Indeed, under the Government’s theory, Congress could not declare war against North Korea because the U.S. does not recognize it as a sovereign state.

4. Significantly, uncontroversial practice by early and recent congresses underscores these points. Yet much of the relevant legislative precedent but has thus far not been considered in the Zivotofsky litigation. For example, the implementing legislation for the US-Israel Free Trade Area Agreement authorizes products from the West Bank to be imported as from Israel, and classified as Israeli under US tariff designations.

The U.S. does not recognize the West Bank as part of Israel, but the law does not challenge that. Rather, in the exercise of Congress’s Foreign Commerce and Tariff powers, Congress relates to the particular territory as if it were part of Israel. If Congress can designate the West Bank as de facto assimilated to Israel in the exercise of its Tariff and Foreign Commerce powers, there is no reason it should not be able to do the same with Jerusalem (a geographically designation that partially overlaps with the West Bank) under its Immigration and Naturalization powers.

To take another little-noticed example, the 2014 Appropriations Act includes Western Sahara in the foreign aid allocation for Morocco. This is not an recognition of sovereignty, contrary to US policy, of Moroccan sovereignty, but rather an acknowledgment that Morocco is the “administering” power, as the committee report explains it. These laws’ constitutionality has never been questioned (in a signing statement or otherwise), but would be undermined by the adoption of the government’s position in this case.

Crucially, the Executive branch has never objected to the constitutionality of Congress treating the West Bank as part of Israel for foreign commerce purposes, or Western Sahara as part of Morocco for spending purposes. In the brief, we describe numerous other statutes that apply enumerated powers to unrecognized territories (pg. 15-18).