I wrote an amicus brief in support of the petitioner in the Zivotosfksy case with Alan Gura, and blogged about it extensively here. While I obviously disagree with the decision, it was not so terrible on the law, though I think the application to the facts was way off.
Today I have a piece commenting on the decision and its implications over at ScotusBlog’s instal-symposium on the case. Some extracts:
[T]he opinion may actually be broader than it seems, because applying even an exclusive recognition power to the facts of the case would not obviously result in a win for the president. The case goes beyond recognition in two ways. First, it does not involve the traditional forms of recognition – countries and governments. Rather, it relates to the geographic scope of countries. Second, the challenged action – the passport law – was not an act of recognition, as the Court concedes.***
Say Congress passes a set of tariffs, or immigration quotas, for India, and specifies that by this they mean Kashmir also. Can the president refuse to apply them to Kashmir? Or to turn it around, could the president apply Pakistani tariffs and immigration quotas to Kashmir when Congress says to apply Indian ones, on the grounds that it interferes with his power of recognition?
These are not far-fetched examples. Assume Congress wants to make a law relating to Israel – immigration quotas, or customs duties. That law now would presumably not apply to Jerusalem, a fairly striking development. The president’s power to avoid laws through (non)recognition becomes even greater when, as with Israel, he can selectively recognize – that is, treat the territory as part of a country for some purposes, but not for others.Indeed, in the short term, the decision may give support to legislative efforts to use language such as “Israel and the territories under its jurisdiction” in trade and other legislation relating to Israel. Some might fear this blurs the distinction between Israel and the West Bank, but such blurring is already inherent in the Jerusalem policy. Such legislation becomes necessary for Congress to accomplish and implement legislative trade policy.