Thoughts on Zivotofsky, Part Six: Why the majority’s surprising decision on executive exclusivity is unpersuasive

As I noted in my previous post, although it was unnecessary to the Court’s holding, the proposition that Zivotofsky will now stand for—in briefs, in articles, and in constitutional law casebooks—is Justice Kennedy’s conclusion for five Justices that “Congress may not enact a law that directly contradicts” the President’s “formal recognition determination.” Such a “recognition determination” can encompass not only a formal position 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” for purposes of international law, but also the official view of the United States respecting another state’s “territorial bounds.”  As Justice Scalia explains in his dissenting opinion, such recognition “is more than an announcement of a policy.  Like the ratification of an international agreement or the termination of a treaty, it is a formal legal act with effects under international law.  It signifies acceptance of an international status, and it makes a commitment to continued acceptance of that status and respect for any attendant rights.”

Think about what the majority’s recognition conclusion therefore portends.  After Zivotofsky, Congress may not enact a statute formally granting recognition to Nation X on behalf of the United States, or determining that the U.S. will recognize Government Y rather than Government Z, for purposes of international obligations, where the two entities are fighting to be recognized as the legitimate government of a state, if the President disagrees with that determination—even if supermajorities of both houses vote to override the President’s veto!  (Indeed, the President won’t have any incentive to veto a bill continuing such a provision in the first instance, because he can now simply disregard it.)  And even in a case where the President agrees with Congress, and signs the bill, that President, or her successor, can then at any time unilaterally reverse the official position of the United States, even in the teeth of the existing statute, and without any need to persuade the Congress or the people that the law should be repealed.

The Court’s conclusion, in other words, therefore, could be a very big deal in the future—as a practical matter shifting significant power to the President to determine United States positions on important questions of international law and foreign relations.  I’m surprised five Justices were willing to take such a bold step, particularly when (as I explained in my previous post) a much narrower and more well-established ground was available for reaching the Court’s ultimate holding that section 214(d) is unconstitutional.  (Technically, the vote on this executive exclusivity question appears to have been 6-2.*)

That the majority reached out to decide that the President’s recognition power is preclusive of Congress is even more surprising in light of the relative weakness of Justice Kennedy’s arguments in favor of it.  Those arguments are already receiving a great deal of critical attention, and there’ll be plenty more in the months and years to come, so I’ll only offer a few words here, mostly on Justice Kennedy’s “one voice” functionalist argument, which I think is at the heart of his opinion.

Justice Kennedy invokes four basic reasons for concluding that Congress cannot regulate the President’s recognition decisions.  He expends many pages on two of them—Court precedents and “accepted understandings and practice” in the political branches—that don’t add up to very much.  For one thing, very few, if any, of those precedents and historical examples had to do with the type of “recognition” decision in this case—namely, the U.S. view of which state has sovereignty over a particular geographic area. (The closest case was probably when President Carter recognized the People’s Republic of China as the government of China, and there remained an open question about whether the PRC was sovereign over the island of Taiwan.  As Justice Kennedy’s discussion indicates, however, neither the President nor Congress ever quite offered a formal view on that question.)  But even with respect to more traditional forms of “recognition” decisions, the cases and historical incidents Justice Kennedy canvasses did not involve instances in which Congress formally rejected the President’s views, or in which the President disregarded a statutory determination—because, until now, there haven’t been any such cases.  To be sure, and as Sean Mirski notes, “Justice Kennedy musters a few pro-exclusivity statements made by some members of Congress during debates”; but “these isolated statements do not rise to the level of an institutional position” and, in any event, “they are more than offset by contrary statements made by Presidents Jackson and Lincoln, who each acknowledged Congress’s relevance in the recognition process.”

At best, then, history and precedent are a wash, and Justice Kennedy makes little effort to argue otherwise (some Court dicta “lend support to the position that Congress has a role in the recognition process,” he concedes, and “history is not all on one side”).

Justice Kennedy also makes an odd argument from what he calls “constitutional structure”:  He asserts that each of the ways in which recognition on behalf of the United States “may be effected” is dependent upon”some action of the President, such as receiving an ambassador, signing a treaty, or formal initiation of diplomatic relations.  The President can do some of those things alone, and he must be involved in each of them, whereas “Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.”

This is not a very persuasive argument for executive exclusivity.  For one thing, even if it were true that all the ways of effecting U.S. recognition required presidential involvement but none of them could be accomplished by Congress alone, why would that mean that effecting (or precluding) recognition by statute—by the ordinary “bicameralism and presentment” mode of legislation—would be constitutionally precluded?  I can’t think offhand of any reason why that would be so.  Moreover, were it not for the Court’s decision in Zivotofsky itself, there would be a way in which the United States could make a formal recognition decision without the assent of the President—namely, if Congress were to pass a recognition statute over the President’s veto.  So much for the “structural” argument.

What remains, of course, is Justice Kennedy’s functionalist argument, which quite evidently was what drove the majority to settle upon its claim of executive exclusivity on questions of recognition.  Here’s that functional argument, in full:

Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.  Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights.  These assurances cannot be equivocal. . . .

Recognition is [thus] a topic on which the Nation must “‘speak . . . with one voice.’” American Ins. Assn. v. Garamendi, 539 U. S. 396, 424 (2003) (quoting Crosby v. National Foreign Trade Council, 530 U. S. 363, 381 (2000)). That voice must be the President’s.  Between the two political branches, only the Executive has the characteristic of unity at all times.  And with unity comes the ability to exercise, to a greater degree, “[d]ecision, activity, secrecy, and dispatch.” The Federalist No. 70, p. 424 (A. Hamilton).  The President is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition.  See, e.g., United States v. Pink, 315 U. S. 203, 229 (1942).  He is also better positioned to take the decisive, unequivocal action necessary to recognize other states at international law.  1 Oppenheim’s International Law §50, p. 169 (R. Jennings & A. Watts eds., 9th ed. 1992) (act of recognition must “leave no doubt as to the intention to grant it”).

Does this make any sense?  And, if so, how can it be limited to the recognition context?

Yes, it is true that recognition—like many other matters of U.S. international relations—is a topic on which the Nation ideally speaks “with one voice.”  The Nation must “have a single policy regarding which governments are legitimate in the eyes of the United States and which are not,” and our international assurances “cannot be equivocal.”  That explains, for example, why Congress cannot require the Executive to express a view in diplomacy that is contradictory to the official view of the United States (a rationale that would have been sufficient to decide Zivotofsky itself).  It would be bad—constitutionally disfavored, perhaps—if the Nation’s formal position were garbled, or internally inconsistent.

That’s a straw man, however, when it comes to the executive exclusivity question.  No one disagrees that the Nation should speak with “one voice” and have a “single policy.”  But that doesn’t tell us how that “voice” is to be determined and, in particular, whether Congress can determine our “single policy” by way of statute.  If the Court had held that Congress could preempt or supersede a presidential recognition decision, and Congress did so, there would still be only a “single policy”—that of the official statute of the United States.  (Surely Justice Kennedy does not mean to suggest that the United States must speak with one unchanging voice, over time:  Presumably the Court would agree, for example, that the President can alter the U.S.’s longstanding position on a question of recognition.  The question, then, is whether Congress can do likewise.)

So then we come, finally, to this, the crux of the Kennedy opinion on the question of whose voice prevails:  “That voice must be the President’s.”  Why?

Here, Justice Kennedy simply falls back upon the familiar, well-established advantages of executive action in the field of foreign affairs:  The Executive, unlike Congress, has “unity at all times,” and therefore enjoys the “ability to exercise, to a greater degree, ‘[d]ecision, activity, secrecy, and dispatch’” (quoting Hamilton from The Federalist No. 70).  So, for example, the President “is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition,” and he is “better positioned to take the decisive, unequivocal action necessary to recognize other states at international law.”

All of this is undoubtedly true.  But none of it is sufficient to explain why Congress, after deliberation and political debate, should not be able, in rare cases (usually by supermajorities of both houses), to reject or modify the decisions the President makes after such “delicate” diplomatic efforts.  Nor does it explain why, in a case where a statute determines the U.S. position in the first instance, the President should not be required to persuade Congress to amend that statute (or the Senate to ratify a new treaty) to reflect the recognition determinations he has made at the end of the sensitive diplomatic process that is, indeed, his alone to conduct.

Moreover, Jack Goldsmith is correct that there’s no obvious reason why this particular functionalist rationale would or should be limited to questions of recognition:  Why wouldn’t it apply, with full force, to any and all substantive outcomes of executive diplomacy, including the negotiations of treaties and other international agreements—many of which, of course, require congressional or senatorial approval and all of which can (as Justice Scalia points out) be superseded by subsequent statutes?

The Hamiltonian “unity” and “delicacy” arguments, in other words, are also inadequate to support Justice Kennedy’s ultimate conclusion that Congress cannot, by statute, override presidential recognition decisions.  Moreover, those arguments misrepresent Hamilton, for what it’s worth—in the Federalist he was not making a claim for executive exclusivity (an argument that would not have gone over very well on some important parts of his audience).  With my readers’ indulgence, here’s what I wrote with David Barron in 2008 about such arguments:

Defenders of a preclusive executive prerogative . . . often augment their claims with passages from Hamilton’s Federalist essays in which he discusses the need for energy in the Executive . . . .

But it is wrong to assume that Hamilton here was warning against statutory restrictions on the President.  Hamilton himself indicated in The Federalist No. 71 that his reference [in that Paper] to the harm in placing the Executive at “the absolute devotion of the legislative branch” was not a reference to the Executive being bound by the statutes that such a legislature enacts:  “It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government . . . .”  This passage sheds light on Hamilton’s surrounding ruminations about the need for the exercise of power by a “single hand” . . . .  Hamilton was inveighing against the notion of a multiple executive; he was not in any way suggesting that the Executive with “energy” would not or should not be bound by statutes, even if such laws happened to have been enacted (in large part) by a deliberative, multimember legislature.  Most of the relevant discussion is in The Federalist No. 70, in which Hamilton wrote of the Executive’s energy in order to respond to those who were arguing for “plurality in the Executive” — a plural presidency, or a presidency subject to an advisory council.  In the context of that debate . . . Hamilton explained:

“That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.  This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority, or by vesting it ostensibly in one man, subject in whole or in part to the control and cooperation of others, in the capacity of counselors to him . . . [such as] the votaries of an executive council . . . .”

The reasons for the lack of energy in a multi-headed Executive were obvious: ego, ambition, and difference of opinion make consensus and decision more difficult to achieve.  [FN: Here, Hamilton was expressing the views that had led the Convention delegates to reject a three-member executive.]  By contrast, Hamilton explained, a multimember body, such as the legislature, is “best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.” Although Hamilton explained that the natural internal dissent within a legislature only creates disadvantages if transferred to the executive department, he nowhere suggested that the Executive should not be subject to the laws that do emerge from the sometimes slow and deliberate process of legislation.  To the contrary:

“In the legislature, promptitude of decision is oftener an evil than a benefit.  The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.  When a resolution too is once taken, the opposition must be at an end.  That resolution is a law, and resistance to it punishable.”  [Federalist No. 70.]

* * * [C]ertainly The Federalist No. 70 would condemn a system, such as that of the Confederation period, in which the Congress acted as a singular supervisory body directing and overseeing an Executive without a veto power — a type of “executive council” in fact, if not in name.  But Hamilton suggested that when the deliberative body enacts a law — which under our system of presentment almost always requires executive acquiescence — the Commander in Chief would be bound to implement it.  Of course, to the extent such a law affords the Executive discretion — and in matters of war, that is certainly the overwhelming norm — the “energy” of the single President was seen as a distinct virtue for purposes of decision-making and implementation.  [FN: Indeed, Hamilton saw such energy as essential not only to the protection of the community against foreign attacks, but also “to the steady administration of the laws,” . . . a context in which violation of the laws cannot, of course, be constitutionally indicated.]  Hamilton’s “energy” and “single hand” argument, however, provides a weak basis, considered in its proper context, for any substantive Commander in Chief prerogative to disregard statutory directives.

* * * *

In my next and final post on Zivotofsky, I’ll discuss the somewhat surprising hostility of some Justices (perhaps a majority) to the “alternative” argument that would have offered a more persuasive, and less dramatic, reason for declaring section 214(d) unconstitutional–the argument that Congress may not require the Executive to contradict himself in his conduct of foreign diplomacy.

*

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* Justice Scalia’s dissenting opinion for three Justices expressed some skepticism, but did not ultimately reach a view on it:  “I agree that the Constitution empowers the President to extend recognition on behalf of the United States,” wrote Justice Scalia, “but I find it a much harder question whether it makes that power exclusive.”  Justice Roberts, in his separate opinion, [UPDATE: which Justice Alito joined,] pretty much rejected the majority’s view:  “[A]lthough the President has authority over recognition, I am not convinced that the Constitution provides the ‘conclusive and preclusive’ power required to justify defiance of an express legislative mandate [quoting Jackson’s Steel Seizure concurrence].  As the leading scholar on this issue has concluded, the ‘text, original understanding, post-ratification history, and structure of the Constitution do not support the . . . expansive claim that this executive power is plenary.’  Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temp. L. Rev. 1, 60 (2013).”

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My posts (and a podcast) 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)

9.  Thoughts on Zivotofsky, Part Six:  Why the majority’s surprising decision on executive exclusivity is unpersuasive (June 13, 2015)

10.  A podcast with Jack Goldsmith on Zivotofsky (recorded June 12, 2015) 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).