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Thoughts on Zivotofsky, Part Three: The broad consensus on presidential and congressional foreign affairs authorities

The Justices were, of course, closely and sharply divided on the ultimate resolution of Zivotofsky (on which more shortly).  One of the most striking things about the decision, however, is that at least eight of the nine Justices agreed on three important propositions:

First, the President has an implied constitutional power of “recognition”—i.e., to formally acknowledge, on behalf of the United States, that a particular “entity possesses the qualifications for statehood” or “that a particular regime is the effective government of a state.”  Moreover, the President’s “recognition” authority extends, as well, to the determination of another state’s “territorial bounds.”  That is to say, the President has constitutional authority to decide the view of the United States as to certain important questions of international law, including as to which state, or which government, has sovereignty over a particular territory (or, as here, to decide that the U.S. has no position on such a question).  Six of the Justices went on to hold that this particular presidential power is exclusive, i.e., that Congress has no such recognition power, nor any power to “directly contradict[]” the President’s “formal recognition determination.”  The other three Justices (the Chief Justice, and Justices Scalia and Alito) did not reach the question of whether Congress can countermand the President’s recognition decisions; but they agreed with their colleagues that the President can make such determinations for the United States in the absence of congressional action.

Second, all of the Justices except Justice Thomas agreed that, on the other hand, Congress has substantial constitutional powers to control U.S. foreign affairs—including authorities that can, as a practical matter, undermine a President’s recognition decision, or relegate it to what the Court calls a “hollow act.”  As Justice Kennedy puts the point for the Court:

Although the President alone effects the formal act of recognition, Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself.  If Congress disagrees with the President’s recognition policy, there may be consequences.  Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties.  And those decisions require action by the Senate or the whole Congress.  In practice, then, the President’s recognition determination is just one part of a political process that may require Congress to make laws.

Third, outside the context of “recognition,” the President is generally subject to “Congress’ lawmaking power in the field in international relations.”  Justice Kennedy again:

In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected.  For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course.  The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. . . .  It is not for the President alone to determine the whole content of the Nation’s foreign policy.

In retrospect, the consensus among the Justices as to these three important propositions should not be all that surprising, because the parties themselves agreed on each of them. (Both the majority opinion and the Chief Justice suggest that the Solicitor General resisted the second and third of them, but that was not the case.)

The third area of agreement is especially significant.  It would be difficult to identify another Supreme Court opinion that contains such forceful statements of Congress’s central and (usually) determinative role in foreign affairs.  For this reason, Mike Dorf writes that “[a]lthough the case invalidates an Act of Congress as interfering with an exclusive presidential power, it may be remembered over the long term as a limit on exclusive presidential power (i.e., vindicating congressional power over foreign affairs).”

It remains to be seen whether or not Mike’s prediction will be borne out.  Jack Goldsmith, for example, offers a very different prognostication.  But whatever Zivotofsky’s future impact might be, there’s no doubt that, along with Youngstown, it will now be the principal citation both for the proposition that the President has extensive authorities to act in the field of foreign affairs, and that the Executive is (almost always) subject to extensive congressional powers to control the conduct of such external affairs.

* * * *

My posts on Zivotofsky:

1.  The Article I argument in Zivotofsky (Oct. 30, 2014–pre-argument)

2.  Zivotofsky:  Questions about Article I and Executive diplomatic speech (Oct. 31, 2014–pre-argument)

3.  The core of Zivotofsky:  Of passports, property, commerce, recognition . . . and, ultimately, diplomacy (Nov. 14, 2014–after argument)

4.  Thoughts on Zivotofsky, Part One:  How groundbreaking is it? (June 10, 2015)

5.  Thoughts on Zivotofsky, Part Two: Whither Article III standing? (June 10, 2015)

6.  Thoughts on Zivotofsky, Part Three: The broad consensus on presidential and congressional foreign affairs authorities (June 11, 2015)

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About the Author

is a professor at the Georgetown University Law Center.