Zivotofsky: Questions about Article I and Executive diplomatic speech

[Slightly updated for clarification.]  Following up on yesterday’s post, a couple of readers have asked me whether I was endorsing Jack Goldsmith’s argument that Congress simply lacks any Article I power to specify the content of the “place of birth” line of the passport in the manner required by Section 214(d), or whether my argument depended as well (or instead) on the fact that in this case Congress is effectively requiring the Executive to speak inconsistently in its communications with foreign officials.

In the meantime, Eugene Kontorovich has published two new posts at the Volokh Conspiracy in which he argues that Section 214(d) does not regulate the Executive’s diplomatic speech at all, let alone require the Secretary of State to express any views on the status of Jerusalem sovereignty that are inconsistent with the Executive’s longstanding position.  In this post I’ll briefly respond to these two, related sets of questions.

1.  Is my argument (and the Government’s) a stand-alone Article I argument?

I was probably a bit too quick yesterday to conflate the argument being offered by the Solicitor General (at pages 46-48 of his brief) and Jack Goldsmith’s argument that Congress simply lacks any Article I authority to enact Section 214(d).

All three of us — that is, the SG, Jack and I — conclude that, in contrast to virtually all previous passport statutes, this one does not appear to advance any legitimate “foreign commerce” ends, such as facilitating the accurate identification of U.S. persons traveling overseas, or preventing identity fraud.  But upon more careful reflection, I think it’s fair to say that we take slightly different paths to the conclusion that Section 214(d) raises serious constitutional problems:

Jack concludes that because Section 214(d) could not actually advance a legitimate foreign commerce objective, Section 214(d) can’t be viewed as legitimate foreign commerce legislation at all (or legislation related to naturalization or other Article I powers, either), which is sufficient to resolve the case without reaching any Article II questions.

There is a possible catch here.  In a long line of cases–running from at least Champion v. Ames (1901) through Darby Lumber (1941), through Heart of Atlanta (1964)–the Court has held that so long as Congress is directly regulating interstate or foreign commerce itself, it does not matter if Congress’s primary or exclusive objective is one unrelated to commerce as such.

To be sure, the same might not be true for “necessary and proper” legislation, where Chief Justice Marshall suggested in M’Culloch v. Maryland itself that the Court retains the power to assess whether Congress’s “end be legitimate”:  “[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”  (See also, e.g., Justice Kennedy’s concurrence in United States v. Comstock (2010), suggesting that the Court might be entitled to smoke out whether the “proferred reason” for the necessity of legislation is “a mere artifice.”)  But as one reader, Hash Mooppan, wrote me, Section 214(d) is not so much “necessary and proper” legislation as a direct regulation of an instrumentality of foreign commerce itself–the passport.  Therefore, just as Congress can impose virtually any regulation respecting railroads, aircraft, the national phone system, or other instrumentalities of interstate commerce, regardless of the legislature’s reason for doing so (see United States v. Lopez (1995)), so, too, does Congress have virtually plenary authority to regulate the content of passports . . . and it should not matter whether the particular regulation in question advances an end related to such commerce (or travel).

I think Hash is right, as a general matter.  And that’s probably why the SG’s brief does not specifically argue, as Jack does, that Zivotofsky should lose simply for Congress’s lack of any affirmative Article I authority.  [In fairness to Jack, he does not argue that Section 214(d) is outside Article I because of the absence of a commerce-related objective; he argues that “[t]he statute has nothing at all to do with the regulation of foreign commerce”–by which I assume he means that, whatever its purpose, it would not actually accomplish anything with respect to foreign travel.] 

What makes this case different from the ordinary “regulation of the instrumentalities of commerce” cases, however, is that here, the fact that the statute does not advance any legitimate commerce-related objective makes manifest that the only possible office of Section 214(d) is one that is specifically prohibited to Congress–namely, requiring the Executive to speak out of both sides of its mouth in foreign diplomacy.

In other words, as I wrote yesterday, the fact that the statute does not further any legitimate information-enhancing objectives “simply demonstrates what everyone understands–namely, that Congress enacted Section 214(d) . . . to force the Executive branch itself to say something to foreign officials inconsistent with what the Executive branch would (and does) otherwise say–and indeed, inconsistent with the official view of the U.S. government of an important and sensitive issue of sovereignty.”  That is to say, the failure of the statute to advance any affirmative Article I objectives demonstrates that although Section 214(d) is nominally a regulation of an instrumentality of foreign commerce, it is in essence (as the SG argues) a “vehicle” for achieving an impermissible regulation of Executive diplomacy, thereby raising a serious Article II problem, for the reasons I discussed yesterday.

This rationale is formally slightly different from Jack’s stand-alone Article I argument, and Hash and others were correct to urge me to clarify the important distinction . . . but the result is the same, and I think Jack was absolutely right to home in on this aspect of the case.

2.  But does Section 214(d) in fact require the Executive to garble its foreign communications regarding the status of Jerusalem?

Meanwhile, Eugene Kontorovich takes issue with my characterization of the effect of Section 214(d).  The thrust of his posts, if I understand them correctly, is that (i) the “place of birth” line on passports of U.S. citizens born in Jerusalem is not speech of the U.S. government at all; (ii) if it is speech of the U.S. government, it conveys little, if anything, to foreign audiences; and (iii) in any event, the statutorily required designation of “Israel” would not be a statement about which nation is, or ought to be, sovereign over the city, but instead merely a statement of fact about which nation–Israel–currently governs the city . . . and if foreign audiences misunderstand that, well, their misperceptions are constitutionally immaterial.

My general response to these arguments is that they are simply implausible.  Why?  It’s not merely (as Eugene suggests) that such propositions do not accord with Congress’s “motive” for enacting Section 214(d)–I am decidedly not arguing that an impermissible legislative motive dooms an otherwise constitutional statute.  Instead, I think that Eugene’s characterizations of Section 214(d) are inconsistent with the manifest design and effect of the law and, more importantly, with the way that ordinary, reasonable audiences overseas (as well as in the U.S.) will understand the U.S. passport practice if the Court rules in Zivotofsky’s favor.

I will leave it to our readers–and of course to the Justices–to assess whether I’m right that Eugene’s account blinks reality.  For now, I’d add only some quick reactions to three of Eugene’s discrete points:

1.  Eugene agrees that the passport is an official document of, and issued by, the U.S. government, and that its principal function is to speak to foreign officials on behalf of the Secretary of State.  Ah, but when it comes to the “place of birth” line on the passport, says Eugene, Congress has effectively created “a ‘public forum’ for citizens’ [own speech], like affinity license plates.”  

There’s a lot of this sort of thing about private speech and public fora in the top-side briefs on behalf of Zivotofsky.  Frankly, I find it rather surprising that anyone thinks this argument can bear any weight.  Even assuming that Congress would have some Article I authority to create a private speech forum on a passport line, of course it has not done so here.  The idea that the passport is a vehicle for a flourishing of a wide array of private expression, like parks and streets and airports and student-activities-fee programs and vanity license plates, etc., strikes me as, well, implausible.  The vast majority of citizens, of course, have no option at all about what will appear on that line.  And even those born in Jerusalem have only two options–they can’t insist that the line read “the Holy Land” or “Palestine” or “Middle Earth” or “Bumgarner rocks!”  Moreover, if someone such as Menachem Binyamin Zivotofsky wishes to express the view that he was born in “Jerusalem, ISRAEL!”, absolutely nothing is stopping him from saying so at every port of entry the world over–he can wear a banner to that effect, shout it to the rooftops, or state it in answer to questions from customs officials.  Congress surely did not conclude that citizens needed a line in their passports to enhance a wide array of citizens’ private speech opportunities overseas.  (Nor is this a case in which Congress is attempting to protect citizens from having to “carry” speech with which they disagree (cf. Wooley v. Maynard):  Zivotofsky does not and cannot deny that he was born in Jerusalem.)

2.  Eugene writes that the law “affects none of the consequences [of] a sovereignty recognition,” and that characterizing Jerusalem as “Israel” “is not a determination of [Israeli] sovereignty” at all, but instead is, “[a]t most,  . . . an indication referring to a place by the de facto power”–a simple statement about which nation currently governs Jerusalem.

He’s right that Section 214(d) does not purport to officially change the legal position of the United States about which nation is sovereign over Jerusalem, in a way that would have legal consequences under international or domestic law.  (Indeed, as I explained at the end of my post yesterday, that’s why the statute can’t possibly be a means of carrying into execution any such act of recognition, assuming Congress had such a constitutional power that trumped the President’s.*)

But does Eugene truly believe that anyone–anyone in Congress, anyone overseas, even Menachem Binyamin Zivotofsky himself–would genuinely and reasonably understand the “Israel” designation as simply reminding the reader that the State of Israel currently governs the city of Jerusalem?  There’d be no particular reason for Congress to require the Secretary to convey that obvious and well-known information to foreign readers–and certainly not the passports of U.S. travelers.  Nor would that particular information facilitate proper identification of the traveler or other aspects of foreign commerce.  As I explained yesterday, the change from “Jerusalem” to “Israel” that Zivotofsky seeks will necessarily constrict, not enhance, the practical information about the traveler that is conveyed on the “place of birth” line.  The only information it would add–as any reasonable reader would well understand–is instead, a statement about the United States’s view of which nation does, or ought to, have sovereignty over Jerusalem.  The international community is well aware that the Executive has long taken pains to ensure that the place of birth designation on U.S. passports is consistent with official U.S. recognition policies.  Especially against the backdrop of that consistent practice, the message that would be conveyed to international audiences if the passports of Jerusalem-born citizens were now to read “Israel” would not be an unreasonable or idiosyncratic one:  It would, instead, be the natural reading, and, indeed, precisely the one the 2002 Congress hoped to convey.

3.  Finally, Eugene disagrees with that account of what message the “Israel” designation would, in fact, convey.  He argues that “a passport with ‘Israel’ on it would not send any message about sovereignty over the city, because foreign governments looking at a passport would not know if the bearer was born in Jerusalem.”  Therefore, he writes, “the issue is not the communicative content of the passport.”  He adds that the “audience” for the informational material in a particular passport is often not even a foreign official, but instead U.S. consular officials overseas who are tasked with confirming whether or not the individual in question is the person identified on the passport.

I think he’s onto something here–but nothing that alters the constitutional analysis.  The issue is not, I think, what message or information about Jerusalem is conveyed by the passport of any particular citizen–particularly not in the 90+% of cases in which the readers of the passport will not know that the individual was born in Jerusalem.  In the mine run of cases the foreign functionaries who greet U.S. citizens at the border are unlikely to pay much attention to the “Israel” designation at all, let alone think about what it means vis-a-vis Jerusalem.  That much is true; but it ignores at least two important things:

First, this only tends to demonstrate, once again, that this particular required alteration on the place-of-birth line would not appear to carry into execution any of Congress’s Article I powers to facilitate identification and other aspects of foreign commerce.  (See Part 1, above.)

Second, to the extent that Section 214(d) is designed to, and would, impinge upon the President’s exclusive authority to engage in diplomatic relations (as I argued yesterday that it would), Eugene is right:  that effect would not be (or at least not primarily be) because of any statement or message conveyed to some everyday customs official in Oslo or Bangkok when she opens the passport of a particular U.S. citizen.  Indeed, much of the damage was done by enactment of the statute itself in 2002, which surely was a statement of the United States government at odds with the official statements of the Executive branch since 1947.

But the Executive branch has attempted to remedy, or ameliorate, that infringement by conspicuously refusing to enforce Section 214(d) for the past dozen years.  If the Court were now to side with Zivotofsky, the world audience would then understand, not only that two of the three branches of the U.S. government had in effect prohibited the Executive from continuing its practice of using the word “Jerusalem,” but also that the Executive practice as a whole would henceforth be to use the word “Israel” on the passports of tens of thousands of persons born in Jerusalem.  There’d be no need for those foreign audiences to read each of those passports–they would know full well that the Executive branch is, every day, repeatedly denominating Jerusalem as “Israel” in official government documents, in contravention of the Executive’s insistence, in other diplomatic settings, that the governance and status of Jerusalem must be determined by a negotiated agreement between Israel and the Palestinians.

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* The Court could, of course, conclude, contrary to the arguments of Zivotofsky and his Senate and House amici, that the statute does in fact alter the official U.S. position on the sovereignty of Jerusalem–but in that case the Court would then have to decide whether Congress has the constitutional authority to supersede the President’s determinations of the U.S. position on questions of sovereignty.

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).