Separation of Powers Case Comment 129 Harv. L. Rev. 112

Zivotofsky II as Precedent in the Executive Branch


On May 14, 1948, President Harry S. Truman recognized the State of Israel. Recognition of statehood is “a formal acknowledgment by another state that an entity possesses the qualifications for statehood,” including a defined territory, permanent population, government control, and capacity to engage in international relations. It enables diplomatic and related benefits under domestic and international law, and promotes the legitimacy of the recognized state with third parties. President Truman’s recognition of Israel, and his prerecognition maneuvers that fostered Israel’s emergence as a nation, were among the most consequential unilateral presidential acts in the twentieth century.

Also consequential was the Truman Administration’s later decision about sovereignty over the holy city of Jerusalem. When President Truman recognized Israel, control over Jerusalem was divided between Israel and Jordan, and fiercely contested. His Administration didn’t take sides. Instead, it supported United Nations efforts to accord Jerusalem “special and separate treatment from the rest of Palestine” and disclaimed support for Israel’s sovereignty over Jerusalem. No subsequent President has departed from President Truman’s policy, and several have confirmed it on the ground that Jerusalem’s status must be part of a final negotiation that includes the Palestinians. One way that the executive branch has implemented this policy has been to require the State Department to record only “Jerusalem,” and no state, as the place of birth in the passports of U.S. citizens who were born in that city after May 14, 1948.

President Truman made these important decisions on his own, with little input and no authorization from Congress. No one doubted that he had the constitutional authority to do so. Much less clear was whether his authority was exclusive in the sense that Congress lacked power to legislate otherwise. The question became salient when Congress enacted section 214 of the 2003 Foreign Relations Authorization Act. Section 214(d) sought to countermand the executive branch’s Jerusalem passport policy by requiring the Secretary of State to “record the place of birth as Israel” when a U.S. citizen born in Jerusalem requested the designation. President Bush signed the bill that contained section 214 but asserted in a signing statement that the section was an unconstitutional interference with his constitutional authority to conduct foreign affairs. He made clear that despite section 214, “U.S. policy regarding Jerusalem has not changed.”

Menachem Zivotofsky, the son of U.S. citizens, was born in Jerusalem after section 214(d) came into force. In accordance with the President’s determination that section 214(d) is unconstitutional, the U.S. embassy in Tel Aviv refused his mother’s request to place “Israel” next to “Jerusalem” on the birthplace line of his U.S. passport. Menachem’s parents sued the Secretary of State, seeking to compel the Department to record “Israel” on his passport. This lawsuit has now generated two important Supreme Court decisions on separation of powers in three years. The first, Zivotofsky ex rel. Zivotofsky v. Clinton (Zivotofsky I), ruled that the constitutional dispute at stake in the lawsuit was justiciable rather than a political question. Then last Term, in Zivotofsky II, the Court held that section 214(d) was unconstitutional because it impinged upon the President’s exclusive power to recognize the State of Israel and to determine for the United States which nation is sovereign over Jerusalem.

Zivotofsky II is the most important Supreme Court decision ever on the sources and scope of the President’s independent and exclusive powers to conduct foreign relations — powers that fall in Justice Jackson’s Youngstown Categories Two and Three, respectively. The Court provided novel guidance on these issues in the course of upholding for the first time “a President’s direct defiance of an Act of Congress in the field of foreign affairs,” as the Chief Justice said in dissent. Its analysis made a mess of Justice Jackson’s third category in Youngstown, revived a functional approach to exclusive presidential power that many scholars thought was dead, and left Congress’s legislative power related to diplomacy and foreign affairs in an uncertain but probably shrunken position. These and other elements of the analytically promiscuous decision will influence separation-of-powers disputes far beyond the recognition context.

That influence will be felt primarily in the executive branch rather than in courts. Zivotofsky II is the rare case in which the Supreme Court addresses a clash between the political branches concerning foreign relations. Executive branch lawyers, by contrast, address such clashes all the time. Until Zivotofsky II, these lawyers had to rely on shards of judicial dicta, in addition to executive branch precedents and practices, in assessing the validity of foreign relations statutes thought to intrude on executive power. But now they have a Supreme Court precedent with broad arguments for presidential exclusivity in a case that holds that the President can ignore a foreign relations statute. One can read Zivotofsky II narrowly, and future courts might do so if given the chance. But executive branch lawyers, who are governed by different principles and incentives than judges, won’t read the decision narrowly. They will read it generously in favor of the President in resolving everyday foreign policy disputes between the political branches. In this respect, Zivotofsky II is a reminder that the impact of a Supreme Court decision depends very much on the institution that interprets and applies it.

* Henry L. Shattuck Professor of Law, Harvard Law School. I thank Curtis Bradley, Richard Fallon, Rebecca Ingber, Andrew Kent, Marty Lederman, John Manning, Trevor Morrison, Saikrishna Prakash, Robert Reinstein, Daphna Renan, Ryan Scoville, Ganesh Sitaraman, Adrian Vermeule, and Ingrid Wuerth for conversation and comments, and Ariel Evans, Amanda Claire Grayson, Alex Loomis, Sara Nommensen, and Aaron Rizkalla for research assistance. This Comment discusses executive branch legal opinions, including from the Office of Legal Counsel, where I served as Assistant Attorney General from 2003 to 2004.