So, Erwin Chemerinsky and John Eastman walk into a brief…

On behalf of a group of constitutional law scholars, and the Louis B. Brandeis Center for Human Rights Under Law, Alan Gura and I have authored an amicus brief in support of the petitioner in the Supreme Court case of Zivotosfky v. Kerry – the Jerusalem Passport Case.

One notable aspect of the brief is the wide range of constitutional scholars who (on short notice) joined as amici. The amici include scholars not only of great distinction, but also greatly varying constitutional and political perspectives. It is often that academic amici in a constitutional case include regular debate opponents Erwin Chemerinsky and John Eastman; or my colleague Martin Redish and Jeremy Rabkin. Also among the amici are Julian Ku, Michael Lewis, Calvin Massey, Abe Sofaer, Louise Weinberg, and two Conspirators, David Kopel and myself.

The brief takes a narrow approach to the issues raised by the case, and avoids any major constitutional (or geopolitical) position. We do this not out only because of general avoidance principles, but because the case, properly understood, simply does not raise the major questions about presidential recognition powers with which it is often associated.

We are not arguing about the exclusivity of President’s recognition power. Rather, even a thin view of Congress’s enumerated powers requires it to be able to determine where places are. Moreover, Congress can, and for centuries has, passed legislation applicable to unrecognized territories, and called those territories by names not recognized by the Executive. Moreover, we show that the government’s position, if adopted, would cast significant doubt on several previously uncontroversial pieces of legislation, including those implementing trade agreements with Israel.

In subsuquent posts, I will elaborate further on our arguments.

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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Stewart Baker · August 3, 2014