Within the Scope

Blogging on Administrative Law and the Public Sector

Monday, December 19, 2011

Zivotofsky v. Clinton: The Little Case that Raises Big Constitutional Questions

Early in November, Solicitor General Donald B. Verrilli, Jr., the Justice Department’s top lawyer, made a very consequential speech about foreign policy and the separation of powers.  It also is a speech that nearly no one has ever heard.

Verrilli made his remarks during an argument before the U.S. Supreme Court. He told the Justices that the Obama Administration “has determined that the passports it issues should not identify Israel as the place of birth for persons born in Jerusalem.” “The Constitution,” continued Verrilli, “commits that power exclusively to the Executive and neither a court nor the Congress can override that judgment.”

When one slices through his legalese, it is clear that General Verrilli makes an important claim about American foreign policy. He outlines very broad foreign policy powers that American presidents claim for themselves; powers they say are unchecked by Congress or the courts.

This very big claim arises in what many believed to be a small case. Menachem Binyamin Zivotofsky, an American citizen, was born in Jerusalem in 2002. Menachem's mother filed a consular report noting that the boy’s birth occurred abroad and requested a U.S. passport for him that listed his birthplace as "Jerusalem, Israel."

Congress allows such applications. In the Foreign Relations Authorization Act, it provided that for “a passport of a United States citizen born in the City of Jerusalem, the secretary (of state) shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” This law notwithstanding, both the Bush Administration and the Obama Administration refused the Zivotofskys’ request. They insisted that describing Jerusalem as part of Israel “would critically compromise” the United States’ ability to advance the Middle East peace process.

Even if it were agreed that the words on a passport are a trifle, no one believes that Middle East peace is a small matter. And so scratching the surface of the Zivotofsky’s dispute uncovers an important disagreement: Is the President the only one who has a say as to U.S. foreign policy on Jerusalem?

The Administration’s claim of exclusive authority in this area is grounded in Article II, section 3 of the U.S. Constitution. This provision permits the President to “receive ambassadors and other public ministers.”

Because Congress is a multi-member body, and frequently recesses from its business at the Capitol, it made sense for the Founders to direct any newly-arriving Ambassador to a single person; namely, the President. Yet, modern Administrations have also asserted that the authority to receive Ambassadors includes the power to determine the boundaries of the countries from which those dignitaries arrive. Thus, the authority to receive Israeli Ambassador Michael Oren at the White House implies the power for the President to say, without consultation with Congress or anyone else, where Israel begins and ends.

Those who care about checks and balances in government should think about this further claim very carefully.

It had me thinking about Chaim Weizmann, the first President of Israel. Weizmann famously quipped that “[w]e will take a state even if the Jewish homeland is the size of a tablecloth.” The Zivotofsky case invites us to think about that very possibility – or at least a Presidential declaration that, as far as the United States is concerned, Israel’s borders are only wide enough for a dinner table. If a U.S. President made such a declaration, does our Constitution really require Israel’s supporters in the Congress to sit mute, with their hands folded? That seems to be a step too far.

The claim that the President is the sole author of American foreign policy is jarring because it grabs so much and so greedily. It claims far more power than is needed to “receive ambassadors and other public ministers.” Indeed, it is so over-large that it even intrudes upon the very next words of the Constitution. Immediately after authorizing the President to receive Ambassadors, Article II directs the President to “take Care that the Laws be faithfully executed.” Plainly, neither President Bush nor President Obama considered themselves bound to carry out all of the provisions of the Foreign Relations Authorization Act. Both men ignored a Congressional judgment as to where Jerusalem was; believing that such a determination was theirs alone to make.

Likewise important, even if President Bush regarded the Foreign Relations Authorization Act as dangerous meddling by Congress, he wasn't powerless.  He could have vetoed the Act; exercising a power that no one doubts is committed to the President alone.

For these reasons, it is more than a lawyer’s braggadocio for the Solicitor General to announce that President Obama has made his judgment about Jerusalem, and that “neither a court nor the Congress can override that judgment.” It raises important questions about representative government. It also begs us to ask whether, as to our relationships with other nations, the President’s voice is the only one that matters.