The core of Zivotofsky: of passports, property, commerce, recognition . . . and, ultimately, diplomacy

Seth Barrett Tillman is probably correct:  Section 214(d) of the 2003 Foreign Relations Authorization Act–which requires the Secretary of State to record the place of birth of a U.S. citizen born in Jerusalem as “Israel” on that person’s passport “upon the request of the citizen or the citizen’s legal guardian”–almost certainly is an exercise of Congress’s power under Article IV to “make all needful Rules and Regulations respecting . . . Property belonging to the United States…”  The passport is government property, and Section 214 is a regulation of that property.  (I’ll assume for present purposes that it satisfies the very undemanding condition that it be “needful”–or, at a minimum, that “needfulness” is not subject to judicial second-guessing.)

What’s more, as I explained in my earlier post, Section 214(d) is also the regulation of an instrumentality of foreign commerce, and so it presumably falls within that fount of congressional power, too.  

The problem here, however, is that this particular regulation–this specific exercise of those Article I and IV powers–does not serve any purpose that one would ordinarily associate with those authorities.  It doesn’t, for example, protect the integrity of the passport, or ensure that it conveys useful information to the reader, or prevent fraud, etc.  Indeed, in cases where it applies (i.e., when the citizen requests “Israel”), it would serve only to convey less information to its intended audiences about the birthplace of the traveler, and would therefore undermine, rather than enhance, any informational/identification value the place-of-birth designation might otherwise have.

My argument is not that such a lack of any apparent useful function, standing alone, would render a statute unconstitutional:  Congress has the power to enact plenty of utterly silly laws.  Therefore, for example, if Congress decreed that U.S. passports must be purple, in honor of Gogol Bordello and Prince, or even Sheb Wooley and Jimi Hendrix, purple they would be.  (I might draw the line at Deep Purple, however.)

What makes Section 214(d) more constitutionally troublesome, however, is that its utter lack of useful function, in the service of regulating either foreign commerce or U.S. property, makes manifest that, in practice, its only actual function would be to require the Executive to speak out of both sides of its mouth in foreign diplomacy on the question of which nation ought to have sovereignty over Jerusalem.  That is the way ordinary audiences overseas (as well as in the U.S.) will understand the U.S. passport practice if the Court rules in Zivotofsky’s favor–and such an understanding would be entirely reasonable.  Indeed, it’s precisely why Congress included Section 214(d) in the legislation.  

And if that is the only, or the overwhelming, design and effect of the law, then it raises a very serious constitutional question, even if Congress did have a formal, affirmative power under the property and foreign commerce clauses to enact the legislation. Imagine, for instance, that Congress passed a law requiring that the body of Air Force One be emblazoned with the words “JERUSALEM IN ISRAEL FOREVER!”  That would be a regulation of U.S. property, and of an instrumentality of interstate commerce.  Yet it would nonetheless impinge severely upon the Executive’s constitutional diplomacy power.  (My hypo is similar to Justice Kagan’s at oral argument–“Suppose that Congress passed a law . . . that the Secretary of States had to send an official letter to all foreign ministers whenever a U.S. citizen was born in Jerusalem announc[ing] that a new American has been born in Israel”–except that I’ve tethered mine more closely to Congress’s property regulation and foreign commerce authorities.)

It is an open question whether the Constitution prohibits such a law directly regulating the Executive’s diplomacy–not only by requiring the Executive to contradict himself, by also by requiring him to say something to foreign audiences that the President thinks is untrue.  At oral argument, Zivotofsky’s counsel said that such a law would be constitutional.  My view, like Justice Kagan’s, is that that conclusion “seems, well, a little bit shocking,” basically for the reasons explained in Part III of this OLC opinion.

That does not mean that Congress lacks any authority to determine U.S. foreign relations, or to take steps that could indirectly make the President’s diplomacy less effective.  As the OLC opinion explains, “Congress quite clearly possesses significant article I powers in the area of foreign affairs, including with respect to questions of war and neutrality, commerce and trade with other nations, foreign aid, and immigration;” and the Senate also has the power not to consent to a treaty negotiated by the President.

“As ample precedent demonstrates, however, Congress’s power to legislate in the foreign affairs area does not include the authority to attempt to dictate the modes and means by which the President engages in international diplomacy with foreign countries.”

That last proposition about Congress’s lack of direct control over Executive diplomacy (from the same OLC opinion) might be right and it might be wrong . . . but it is, I think, the core issue in Zivotofsky, much more so than the property power, or foreign commerce, or the “passport power,” or even the “recognition power.” 

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).