At the oral argument in Zivotofsky, Justice Kagan asked plaintiff’s counsel whether it would be constitutional for Congress to enact a law requiring the Secretary of State to send an official letter to all foreign ministers whenever a U.S. citizen was born in Jerusalem, announcing that a new American had been born “in Israel.”  When counsel replied that such a law would be constitutional, Justice Kagan remarked that that conclusion “seems, well, a little bit shocking.”

That skepticism could have formed the basis for the majority’s holding, which would have avoided the need for the Court to opine, as it did, on whether Congress can countermand the President’s recognition decisions:  As I wrote yesterday, the Court might simply have held that 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 short of that, that Congress cannot compel the President to contradict himself when engaged in such diplomatic speech.

Justice Kennedy’s opinion in Zivotofsky came awfully close to saying just that on several occasions.  In each instance, however, he qualified that proposition by tethering it to the recognition context:  “Congress cannot require [the President] to contradict his own statement regarding a determination of formal recognition.”  Moreover, as I’ve explained, Justice Kennedy reasoned that this holding followed from his earlier, broader proposition that Congress itself cannot countermand the President’s determinations of formal recognition.

As I argued yesterday, that broader proposition might well have a significant practical impact on Congress’s ability to control certain aspects of U.S. foreign policy in future cases where the legislature overwhelmingly disagrees with the President’s recognition decisions.  What’s more, I don’t think that Justice Kennedy’s arguments in support of that broad proposition were terribly persuasive.

Why, then, didn’t the Court take the easier way out, and rule for the Executive based upon an exclusive power to control foreign diplomacy, in accord with Justice Kagan’s suggestion at oral argument–while saving the recognition question for another day (one that will likely never come)?  I offered a couple of possible reasons in an earlier post.  In this final post, I’ll examine the possibility that, quite simply, there were not five Justices ready or willing to hold that Congress cannot control the substance of Executive diplomacy.

The Argument for an Exclusive Diplomatic Authority

The Executive Branch, for what it’s worth, has long advanced the view that Congress is limited in its authority to regulate the President’s conduct of diplomatic relations—that is, to regulate the Executive’s speech to foreign audiences.  This argument derives from Rep. John Marshall’s famous March 7, 1800 speech to the House of Representatives (before he was appointed Chief Justice).  The Executive, said Marhsall, is “entrusted with the whole foreign intercourse of the nation,” such as “the negotiation of all its treaties.”  Most famously, Marshall said that “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

Importantly, Marshall did not say, or imply, that Congress lacks authority to determine the substance of the Nation’s formal relationships with foreign nations and foreign persons.  As the Office of Legal Counsel explained in a 2009 opinion, “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 of course can refuse to give its consent to a treaty negotiated by the President.  Congress’s power to legislate in the foreign affairs area, however, “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’s been the longstanding Executive branch view, in any event, the details of which are described in that 2009 OLC opinion.  So, for example, a federal law has been on the books for over a century providing that “[h]ereafter the Executive shall not extend or accept any invitation to participate in any international congress, conference, or like event, without first having specific authority of law to do so” (22 U.S.C. § 262).  The Executive has never complied with that prohibition; and Louis Henkin described it as a “known dead letter.”  Likewise, the Executive branch has long objected to, and refused to comply with, provisions purporting to preclude government employees from negotiating with or recognizing the Palestine Liberation Organization until the PLO had met certain conditions.

This theory of exclusive executive power over the conduct of foreign diplomacy is, in one respect, broader than the exclusive power of recognition that the Court recognized in Zivotofsky–namely, in that it is not limited by subject matter:  If the Executive branch theory is correct, then Congress cannot regulate the substance of the President’s discussions and negotiations overseas on any topic, not only recognition.  On the other hand, it would be a considerably shallower exclusive authority than the one the Court blessed, because it is only a prerogative of voice, not of establishing U.S. law, legal commitments, or formal relationships.  Being the sole “organ” or “representative” in foreign relations is a far cry from being the sole decision-maker.  On this view, Congress retains the ultimate say on all the substantive questions, e.g., trade, or war, or immigration, or sanctions, or alliances, etc.

Take, for instance, the most familiar context in which the issue arises:  negotiating treaties.  Under the Executive’s “sole representative” theory, the President is free to negotiate a treaty containing whatever terms he wishes, on any subject matter–indeed, he’d be entitled to disregard a statute instructing that he must, or must not, negotiate particular terms.  Yet he cannot unilaterally conclude a treaty of the United States; and if he unilaterally concludes a more minor “sole executive” agreement that is binding on the United States, such an agreement is subject to any contradictory or limiting statutes Congress enacts, either before or after the agreement is concluded.  See, e.g., United States v. Guy W. Capps, 204 F.2d 655 (4th Cir. 1953).  As a practical matter, this dramatically limits how a reasonable President negotiates a treaty:  She knows that (ordinarily) she must secure the agreement of either Congress or two-thirds of the Senate–which is no small order, as this week’s events demonstrate.  Moreover, such negotiations occur in the shadow of the corpus of U.S. statutory law:  It is ordinarily a fool’s errand to negotiate treaty terms that conflict with U.S. statutory law, except in rare cases where the Executive has confidence that the Congress or the Senate will assent.  Still, under the Executive view of preclusive diplomatic power, the President would be free to negotiate such terms, even if a statute instructs her not to do so–and then try her luck at convincing the Congress or Senate to amend U.S. law accordingly.

One court of appeals in 1993 expressed sympathy with the Executive branch view of the President’s preclusive diplomatic authority (see Earth Island Inst. v. Christopher, 6 F.3d 648, 653 (9th Cir. 1993)); but the Supreme Court had never had occasion to consider it until Zivotofsky.  The Court has often cited Marshall’s “sole organ”/”sole representative” passage favorably, but it has never decided whether Congress can, by statute, prescribe the content of the sole representative’s speech to foreign officials.

Curtiss-Wright Clouds the Picture

Most famously—or infamously—in the 1936 case of United States v. Curtiss-Wright Export Corp., Justice Sutherland invoked Marshall’s 1800 speech in broad dicta that were unnecessary to the Court’s decision in that case (which concerned whether it was constitutional for Congress to delegate certain authority to the Executive).  Much of what Sutherland wrote was boilerplate, and unobjectionable:  In the “vast external realm,” he opined, “with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.  He makes treaties with the advice and consent of the Senate; but he alone negotiates.”

So far, so good.  Sutherland then went one step further—but still limited to the context of international discourse:  “Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”  This statement is consistent with the longstanding Executive branch view, described above, that Congress cannot regulate the manner or substance of the President’s diplomacy—“the field of negotiation.”

The principal problem with Sutherland’s opinion—the reason it became such a flashpoint for so many years—is that in much of the rhetoric surrounding these passages, Sutherland appeared suggest a far broader form of executive exclusivity–not only with respect to negotiation and diplomacy, as such, but as to “the international field,” or the Nation’s “external affairs,” writ large.  And this loose language thereafter invited Executive branch lawyers, at least on certain occasions, to point to Curtiss-Wright as support for the view that Congress lacks any constitutional authority to determine the substance of the foreign affairs of the Nation—an obviously untenable proposition.  Harold Koh famously referred to this as the Executive lawyer’s reflexive, good-for-all-seasons “Curtiss-Wright, so I’m right” citation.

The Zivotofsky Court’s Treatment of Curtiss-Wright

The Justices (especially those who have worked in the Department of Justice, i.e., the Chief Justice and Justices Scalia, Alito and Kagan) were all-too-familiar with this historically overbroad Executive reliance upon the Curtiss-Wright dicta.  And if one thing is certain about Zivotofsky, it’s that eight of those Justices set out to bury those dicta once and for all—to send a strong signal to Executive lawyers to stop citing Curtiss-Wright so indiscriminately (even though the SG in this case made so such broad claim).

In his majority opinion, for example, Justice Kennedy writes (correctly) that “Curtiss-Wright did not hold that the President is free from Congress’ lawmaking power in the field of international relations.”  Moreover, he continues:

whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.  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.

The Court also specifically “declines to acknowledge th[e] unbounded power” suggested in Sutherland’s description of the President as “the sole organ of the federal government in the field of international relations.”  The Chief Justice’s dissenting opinion likewise would consign Curtiss-Wright to an ignominious dustbin.

What About an Exclusive Diplomatic Authority?

There’s something of a disconnect here, however.  To be sure, to the extent Curtiss-Wright stands (or stood) for the propositions that “the Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue,” or that “it is for the President alone to determine the whole content of the Nation’s foreign policy,” then it was and is obviously wrong—which explains why the Executive branch did not make any such categorical argument in Zivotofsky itself.

But what about the much more cabined argument that the Executive did make, about executive exclusivity when it comes to the conduct of diplomatic relations—i.e., that Congress cannot control what the President says to foreign audiences?  Does Marshall’s “sole organ”/“sole representative” speech support at least that much, even if Congress gets the last word about much or all of the substance of the Nation’s international relations?

Somewhat surprisingly, the dissenting opinions appear to specifically reject this longstanding Executive branch argument.  For instance, in response to the majority’s actual holding that Congress may not “requir[e] the President to contradict an earlier recognition determination in an official document issued by the Executive Branch,” Justice Scalia does not mince words:  “Nonsense.”  The fact that the statute would prevent the President from maintaining his neutrality about Jerusalem in “his and his agent’s statements,” reasons Justice Scalia, “is of no constitutional significance.”[1]

For his part, the Chief Justice directly addresses the Executive’s argument that the President has “exclusive authority to conduct diplomatic relations.” “[O]ur precedents,” he writes, “have never accepted such a sweeping understanding of executive power.”  As it happens, none of the precedents the Chief Justice cites involved any statute limiting the Executive’s conduct of diplomatic relations:  They’re all inapposite.  It is true that no Court case has ever “accepted such a sweeping understanding of executive power.”  But neither has any case rejected it . . . because the Court had never before been confronted with the issue.  Zivotofsky was, in this important respect, a case of first impression.  In any event, whatever the merits of the Chief’s argument, he appears quite clearly disinclined to the notion that Congress cannot tell the President what to say in international relations.  (Perhaps he was not as shocked as Justice Kagan by the prospect of her hypothetical law requiring the Secretary of State to send an official letter to all foreign ministers whenever a U.S. citizen was born in Jerusalem, announcing that a new American had been born “in Israel.”)

The majority opinion is somewhat more opaque on the question.  Justice Kennedy cites the Marshall speech in support of the proposition that the President has “a unique role in communicating with foreign governments.”  And, of course, the ultimate holding of the Court relies heavily–and repeatedly–on the fact section 214(d) would require the Executive to contradict its own statements to foreign audiences on questions of recognition.[2]  Moreover, as I discuss in my previous post and as Jack Goldsmith emphasizes, it’s not at all evident why the “functionalist” rationale at the heart of the Kennedy opinion would not apply with full force to all sensitive diplomatic communications, not only those related to questions of recognition.  This all points, at least indirectly, in the direction of supporting the Executive’s longstanding theory of a preclusive diplomatic authority.

Even so, it is striking that the Court’s opinion does not say that a statute requiring the Executive to engage in diplomatic self-contradiction would be invalid outside the context of recognition—a holding that would have precluded the need for the Court to wade into the thicket of whether Congress can regulate the Nation’s formal recognition power itself. Perhaps at least two Justices who joined the majority opinion are inclined to agree with the three dissenting Justices that Congress can regulate diplomacy—or in any event they weren’t yet prepared to say otherwise.  Or perhaps Curtiss-Wright is now such an anti-canonical precedent that a majority of the Court is unwilling to say that any part of Sutherland’s dicta was correct.

Whatever the reason, the fact that three relatively pro-Executive Justices were so dismissive of the “exclusive diplomatic power” argument, and the fact that the Court itself conspicuously avoided resting its decision on that argument, will make it much more tenuous, going forward, for the Executive branch to argue that it can refuse to comply with statutes regulating the conduct of diplomacy.  At a minimum, I think it’s a safe bet that the new adage among Executive lawyers writing briefs and opinions will be: “Curtiss-Wright? Out of sight.”

[1] In his dissenting opinion, Justice Scalia notes that the Houses of Congress themselves have often “made formal statements announcing their own positions” on issues of recognition, such as a recent House resolution expressing “strong support for the legitimate, democratically-elected Government of Lebanon” and condemning an “illegitimate” and “unjustifiable” insurrection by “the terrorist group Hizballah.”  The Executive branch’s argument is not, however, that no parts of the United States government can ever say anything that contradicts the President’s diplomatic speech—a quixotic goal—but instead that Congress may not require the President to contradict himself in the course of his communications with foreign representatives.

[2] In his dissenting opinion, Justice Scalia offers several reasons to doubt whether the command of section 214(d) would, in fact, require the Executive to contradict its own statements to foreign audiences on questions of recognition.  For example, he questions whether the passport is an Executive communication to foreign nations at all:  “I leave it to the reader to judge whether a request to ‘all whom it may concern’ qualifies as a ‘communication directed at a foreign power.’”  Elsewhere, he suggests that § 214(d) merely “calls for nothing beyond a ‘geographic description,” or a “display” of “symbolic support for Israel’s territorial claim,” but “does not require the Executive even to assert, never mind formally recognize, that Jerusalem is a part of sovereign Israel.”  I am not sympathetic to these characterizations of § 214(d), for the reasons I discussed back in October.  This particular dispute about the effect of section 214(d), however, does not bear on the constitutional question about diplomatic authority that I discuss in this post.

* * * *

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.  Thoughts on Zivotofsky, Part Seven:  The fate of an exclusive <i>diplomatic</i> authority (and the “sole organ” argument) (June 14, 2015)

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