Thoughts on Zivotofsky, Part Five: Why did the majority choose to decide whether the President’s “recognition” power is exclusive?

“Congress may not enact a law that directly contradicts” the President’s “formal recognition determination.”  That’s the constitutional proposition in Justice Kennedy’s majority opinion (p.27) that Zivotofsky will surely be known for—the bold assertion that will spawn countless law review articles.

Here’s the odd thing, though:  The entire Court agreed that Congress hasn’t enacted any law “directly contradict[ing]” a presidential “formal recognition determination.”

So why, then, did a majority of the Court nevertheless declare that section 214(d) was unconstitutional?  Because that statutory directive would require the President, in his diplomatic interactions with other nations, to speak out of both sides of his mouth.  That’s the actual holding of the Court—it’s not about whether Congress can make its own recognition decision in contradiction of the President (which it didn’t do), but instead about whether Congress can compel the Executive to contradict its own recognition determinations.

At oral argument, the Solicitor General repeatedly sounded this theme of impermissible compelled diplomatic contradiction—stressing it no on no fewer than a dozen occasions—and it found a place of prominence in Justice Kennedy’s opinion, appearing at least six times (see pages 18, 27 (twice), 28, 29 (twice)).

This does not mean, however, that the majority’s broader proposition, about Executive supremacy on recognition questions, was dicta.  According to Justice Kennedy, the Court’s narrower holding follows from that proposition:  “If Congress may not pass a law, speaking in its own voice, that effects formal recognition, then it follows that it may not force the President himself to contradict his earlier statement.  That congressional command would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”

And that is true, as far as it goes:  Surely, if Congress may not formally determine that the U.S. position will be that Israel is (or is not) sovereign over Jerusalem, then it stands to reason the legislature cannot require the President to articulate such a determination to foreign audiences.

Even so, it was not necessary for the Court to resolve the more significant “recognition” question in order to reach its “compelled Executive contradiction” holding.  Instead, the Court might simply have said—as I suggested here—that whether or not Congress has the power to establish the metes and bounds of U.S. foreign policy, on recognition questions or otherwise, when its views contradict the President’s, Congress does not have the power to control the Executive’s conduct of diplomacy, that is, of deciding what to say to foreign officials.  Or, even narrower than that, the Court could have held that Congress at a minimum cannot compel the President to contradict himself when engaged in diplomatic activity—the central insight of the holding of the case that Justice Kennedy repeatedly invokes.

So why did the majority go further, and choose to resolve a very difficult issue of constitutional law that the case did not raise . . . and that has never arisen in our history?  There’s no way to know for certain; but I can venture a couple of guesses about why Justice Kennedy and his colleagues opted to decide the recognition question.

The first possibility is, quite simply, that there were five votes (in addition to Justice Thomas) for resolving that question, and those Justices thought it was important or useful to do so here, so as to pretermit any future congressional efforts to countermand or undermine presidential recognition decisions.  In my next post, I’ll briefly discuss the significance of that holding, and whether the Court offered persuasive reasons for it.

The second reason why the majority might have chosen to venture beyond the available narrower rationales for its holding—namely, that Congress can’t control Executive diplomacy or, in any event, require Executive contradictions in diplomacy–is that perhaps there weren’t five votes in support of those rationales.  The three Justices in dissent specifically—and in my view, surprisingly–rejected the longstanding Executive branch view that Congress may not prescribe the substance of the President’s diplomacy; and parts of Justice Kennedy’s majority opinion point in that direction, too (although, as I’ll discuss in a later post, other parts of that opinion suggest some sympathy with the notion that the Executive has a preclusive diplomatic authority).  In my final post, I’ll discuss this question further, in the context of examining the Court’s unceremonious burial of the dicta in Curtiss-Wright, and the fate of the notion that the President is, in John Marshall’s words, “the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

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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)

7.  Thoughts on Zivotofsky, Part Four:  Justice Thomas as constitutional iconoclast (or, “What was so terrible about King George III, anyway?”) (June 11, 2015)

8.  Thoughts on Zivotofsky, Part Five:  Why did the majority choose to decide whether the President’s “recognition” power is exclusive? (June 13, 2015) 

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).