I just finished reading the transcript from this morning’s arguments in Zivotofsky v. Kerry, a case about whether Congress has the power to pass a law directing the State Department to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on various forms, including a passport. President George W. Bush signed the law in 2002, but also issued a signing statement questioning the constitutionality of the law. President Obama’s administration has followed suit, refusing to enforce that provision of the law. This case seems to me to have compelling arguments on both sides, but the terms of the debate were particularly interesting, as they featured debate about the reasoning that comes into play in executive-power cases.
Over and over, Solicitor General Verrilli hammered the consequences of the birthplace requirement to buttress his argument that the passport operated as “diplomatic communications” that impinged upon a core “recognition power,” that is, the power to recognize sovereigns (for which the executive has asserted exclusive power for quite a while). Because the executive also has the power to “give effect” to its recognition, the administration argued, any congressional statute that might detract from this effect (such as by causing problems for diplomatic relations) is unconstitutional.
But Justice Scalia asked Verrilli to explain why the expected consequences (pp. 27–28) should matter to the legal analysis:
JUSTICE SCALIA: If it – if it is within Congress’s – if it is within Congress’s power, what difference does it make whether it antagonizes foreign countries?
GENERAL VERRILLI: Well, there are certain things that are within Congress’s power that would antagonize foreign countries that wouldn’t raise a separation of powers problem, of course, like a trade embargo or a travel ban. But –
JUSTICE SCALIA: And this may be one of them. So –
GENERAL VERRILLI: This is not one of them.
[JUSTICE] SCALIA: – the mere fact that it upsets foreign relations doesn’t prove a thing.
GENERAL VERRILLI: No. The critical point, Your Honor, is that what this statute does that those other statutes don’t do is it requires the Executive Branch, the President himself and the Executive Branch itself, to communicate a message that contradicts the official recognition position of the United States, undermining the President’s credibility and preventing the President from being able to speak with one voice credibly.
Justice Kennedy then chimed in, again asking (as he had earlier in the argument) why the State Department couldn’t simply add its own disclaimer about whether the birthplace identification was legal recognition:
JUSTICE KENNEDY: But why couldn’t you have a disclaimer of the kind that I’ve explained to the Petitioners’ counsel. She said that would be perfectly lawful, for you to say it’s not the position of the State Department, this is not an indication that Israel has jurisdiction over Jerusalem.
GENERAL VERRILLI: Your Honor –
JUSTICE KENNEDY: Why wouldn’t that solve the problem?
GENERAL VERRILLI: It doesn’t solve the problem because the issuance of the disclaimer is a credibility hit. It undermines the credibility of the President because what is – think about what it’s actually saying. What it’s actually saying in this context is yes, we’re issuing thousands of passports that identify persons born in Jerusalem as being born in Israel; yes, the Congress of the United States required that; but pay no attention to it really; it doesn’t have any bearing on recognition.
Justices Scalia and Kennedy were seemingly making a formalist point that characterizing a birthplace as being in a particular country is not formal legal recognition of its being there. This argument focuses on the nature of the recognition power, rather than its consequences. Verrilli answered that issuing such a disclaimer would be embarrassing, making a consequentialist argument: The executive’s power is delimited by looking to the effects of limiting it, in this case, a “credibility hit.” But for that argument to work, the Constitution would have to have some guarantee that different branches of the U.S. government would not be sending conflicting messages, a view that Verrilli had just admitted would not be accurate. In the words of the prison warden from Cool Hand Luke, what we’ve got here is a failure to communicate.
The disconnect between Justices Scalia and Kennedy’s question and Verrilli’s answer arises, I suspect, from how some of the cases explicitly disavow precise boundaries for executive power. I speak primarily of Justice Jackson’s concurrence in The Steel Seizure Cases (1952), a case reviewing Harry Truman’s attempt to nationalize the domestic steel industry during a strike under a claim of executive power. Justice Jackson began his argument by rejecting text or historical sources as helpful for thinking about executive power:
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
Because there are no judicially-ascertainable standards, he argues, the vacuum of specificity implies a continuum of powers that fall into these three general categories:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Jackson’s concurrence seeks to treat the Constitution as a conceptual framework that grants maximum flexibility for changing conditions, rather than as a legal instrument for establishing and regulating powers. Verrilli’s argument, which seeks to draw the constitutional line around a perceived need of international diplomacy, is premised on the same pragmatic approach. This pragmatic approach, I suspect, is why the four most liberal members of the Court appeared to be most sympathetic to the administration today.
International diplomacy is clearly important to the prosperity and security of the United States. It’s also correct to say that the president has much more discretion over international affairs than domestic affairs (as affirmed in United States v. Curtiss-Wright Export Corp. (1936)), which is why only Justices Scalia and Kennedy seemed resolutely opposed to the administration’s position. But the whole point of a written Constitution is to take away flexibility, not to grant it wholesale. Thus, it seems exactly backwards to use the lack of restraints on external affairs as an argument to diminish the power of another branch — i.e., Congress — over internal governmental functions. Either way, the Court’s opinion will likely constitute an important contribution to jurisprudence on the relationship between Article I and Article II.