By Maxwell Steinberg

Federal Constitutional Structure

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Introduction

In Zivotofsky v. Kerry, a landmark Supreme Court case decided in 2015, the justices wrestled with a contentious issue at the heart of the Israeli-Palestinian conflict: the status of Jerusalem. [1] The dispute arose from a provision in United States passport law, passed in 2002, written to allow American citizens born in Jerusalem to request that their place of birth be listed as “Israel” on their passports. Despite congressional majorities voting in favor of such law, critics argued that this provision clashed with the longstanding U.S. foreign policy stance of not officially recognizing any country’s sovereignty over Jerusalem. Accordingly, an ensuing legal battle manifested controversy regarding Jerusalem’s political and diplomatic status in the context of a domestic separation of powers dispute surrounding foreign policy.

In a 6-3 decision, the Court held that the President has exclusive power over federal recognition of foreign relations, meaning that Congress could not prescribe that the State Department connote Jerusalem as a part of Israel in U.S. passports. While not joining the majority opinion, Justice Thomas, in his solo concurrence in part and dissent in part, asserted the unconstitutionality of section 214(d)’s passport provision. [2] In contrast, Justice Scalia’s dissent, joined by Chief Justice Roberts and Justice Alito, described the recognition power as being shared between both Congress and the President. This article will highlight the role of originalism in this case, with a distinct focus on these two justices’ analytical approaches to the recognition power.

Justice Thomas’ View:

Toward the beginning of his opinion, Justice Thomas relied on his solo dissent from a decade earlier in Hamdi v. Rumsfeld, which proclaimed, “the President ha[s] primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.” [3] Then, contrasting the omission of the words “herein granted” in Article II’s Vesting Clause to that of Article I, Justice Thomas claimed that executive power means something more expansive than the authorities expressly enumerated in the Constitution. [4] Within this framework, Justice Thomas began the next section of his opinion by arguing that executive power encompassed residual foreign affairs power at the Founding, a proposition he bolstered by citations to Locke, Blackstone, and Federalist No. 72.

Citing John Locke’s Second Treatise of Civil Government §146, Justice Thomas noted his description of foreign powers, meaning “war and peace, leagues and alliances, and all the transactions with all persons” as “federative.” In his 1765 Commentaries on the Laws of England, William Blackstone took an expansive view, describing the “executive power” as encompassing “power of sending [a]mbassadors to foreign states, and receiving [a]mbassadors at home,” making “treaties, leagues, and alliances with foreign states and princes,” “making war and peace,” and “issu[ing] letters of marque and reprisal.” Alexander Hamilton, writing in 1788, characterized “[t]he actual conduct of foreign negotiations,” “the arrangement of the army and navy, the directions of the operations of war…and other matters of a like nature” as “fal[ling] peculiarly within the province of the executive department.” [5]

Justice Thomas stressed the Executive Branch’s authority over foreign affairs by referencing historical practice during President Washington’s administration, where he “corresponded directly with U. S. ministers, moved them among countries, and removed them from their positions at will.” [6] Later in the opinion, he similarly emphasized history and tradition, “In the Anglo-American legal tradition, passports have consistently been issued and controlled by the body exercising executive power,” describing passports as “heirs to a tradition of requiring the King’s license to depart the country.” [7]

Justice Thomas asserted that the issuance of passports did not fall within one of Congress’s enumerated powers, citing his Lopez concurrence for the proposition that the Commerce Clause was not broad enough to encompass this authority. He continued, declaring, “A passport has never been issued as part of the naturalization process.” [8] Given that passports had, at best, an “attenuated” relationship between foreign commerce and naturalization, Justice Thomas claimed that the Necessary and Proper Clause could not be used as textual support for Congressional authority in this area. [9]

Consequently, Justice Thomas chastised Justice Scalia’s dissent for “offer[ing] no response to my interpretation of the words ‘executive Power’ in the Constitution,” choosing instead to lambast his position as championing “Presidential primacy over passports.” [10] He diminished the history Justice Scalia cited as not determinative to the original meaning as it was “based on two postratification English statutes, the early practice of nonfederal actors issuing passports in this country, and…congressional statutes that [were] most[ly]...enacted after the Civil War.” [11]

Justice Scalia’s Response:

Justice Scalia characterized Justice Thomas’s approach as “shatter[ing congressional power over foreign affairs] in one stroke.” [12] Discussing the Commerce Clause, Justice Scalia maintained, “Read naturally, power to ‘regulate Commerce with foreign Nations,’ includes power to regulate imports from Gibraltar as British goods or as Spanish goods.” [13] Disputing Justice Thomas’s historical argument that the royal prerogative over passports in England was “exclusive,” Justice Scalia cited the Aliens Act 1793, which was “enacted almost contemporaneously with our Constitution.” [14] That law “required an alien traveling within England to obtain ‘a passport from [a] mayor or…[a] justice of [the] peace,’ ‘in which passport shall be expressed the name and rank, occupation or description, of such alien.’” [15]

Justice Scalia then cited a trove of congressional action in the passport domain, but critics emphasize that these laws could not be dispositive of original meaning since they spanned the 19th and 20th centuries, not the 18th. The following excerpt illustrates the necessary context:

“This statement overlooks the reality that, until Congress restricted the issuance of passports to the State Department in 1856, ‘passports were also issued by governors, mayors, and even . . . notaries public.’ To be sure, early Presidents granted passports without express congressional authorization….But this point establishes Presidential authority over passports in the face of congressional silence, not Presidential authority in the face of congressional opposition. Early in the Republic’s history, Congress made it a crime for a consul to ‘grant a passport or other paper certifying that any alien, knowing him or her to be such, is a citizen of the United States.’ Closer to the Civil War, Congress expressly authorized the granting of passports, regulated passport fees, and prohibited the issuance of passports to foreign citizens. Since then, Congress has made laws about eligibility to receive passports, the duration for which passports remain valid, and even the type of paper used to manufacture passports. (The concurrence makes no attempt to explain how these laws were supported by congressional powers other than those it rejects in the present case.)” [16]

A Scholarly Perspective:

Predating the Supreme Court’s disposition of Zivotofsky in his 2011 Recognition: A Case Study on the Original Understanding of Executive Power in the University of Richmond Law Review, Professor Robert Reinstein asserted that the two “arguable” textual hooks for a plenary executive recognition power are the Receive Ambassadors Clause and the Executive Vesting Clause.

On the Receive Ambassadors Clause:

Scholars continue to debate the extent that British royal prerogatives should factor into the constitutional analysis of various contexts dealing with interpretations of Articles I and II. However, Reinstein wrote, “The Constitution allocated the secular royal prerogatives in Articles I and II. Most of these prerogative powers were granted in their entireties to Congress.” [17] Those that were given to the president, however, were qualified by “limitations in scope, congressional override, or senatorial veto,” according to Reinstein. [18] This interpretation leads to the conclusion  that reading Receive Ambassadors Clause as plenary “would be a remarkable singularity.” [19]

Reinstein cited Federalist No. 69 as support for the proposition that the Receive Ambassadors Clause did not give the president the same power as its royal prerogative. In Federalist No. 69, Hamilton went clause-by-clause in comparing each presidential power with its royal prerogative counterpart and concluded that none was equivalent, declaring:

“The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner than that there should be the necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.” [20]

On the Executive Vesting Clause:

Characterizing the “herein granted” language in Article II as a redundancy, Professor Resinstein refuted the argument Justice Thomas would advance several years later by supposing the phrase had been added to Article I. If “herein granted” was not meant as a redundancy, he argued, such language in Article I would mean “that Congress would possess all legislative powers except those that are specifically restricted by the Constitution (such as the veto power and the joinder of the President and Senate making treaties, which are declared to be "laws" in the Supremacy Clause).” [21] However, granting Congress the authorities of the British Parliament “would not be accepted by any serious student of constitutional law” as it “would defy the basic principle of delegated powers.” [22]

Remembering the 1793-1794 Pacificus and Helvidius Debates:

In the last decade of the 18th century, Hamilton (writing as Pacificus), advocating for a broad interpretation of executive authority, defended President George Washington's decision to issue a proclamation of neutrality in the conflict between France and Great Britain. Madison (writing as Helvidius), on the other hand, argued that Congress had the power to make these types of foreign policy decisions. [23] Beyond highlighting tensions between the Federalist and Republican factions and contributing to the ongoing discourse on the balance of power within the new nation, these debates reflected similar issues present in Zivotofsky. 

How can scholars analyze Hamilton’s about-face in his later argument that the Receive Ambassadors Clause marks the source of the Executive’s recognition power? One such way, as presented by Professor David Gray Adler is to accept the Receive Ambassadors Clause as the source of recognition power while asserting that postratification history demonstrates this power as being ministerial, not discretionary. [24]

Some Closing Questions:

This analysis leaves several concluding questions, which I will seek to explore in the future: Is there a rationalizing theory for the use of “herein granted” in Article I as opposed to Article II? What does it mean for a power to be ministerial as opposed to discretionary? Is Reinstein correct that the royal prerogatives given to the president are limited in scope? Were they defined as such?

[1] Adam Liptak, Question of Birth Becomes One of President’s Power (Published 2011), The New York Times (July 25, 2011), https://www.nytimes.com/2011/07/26/us/26bar.html (accessed July 5, 2023).

[2] OYEZ,

\https://www.oyez.org/cases/2014/13-628, (accessed July 5, 2023).

[3] Hamdi v. Rumsfeld, 542 U. S. 507, 580 (2004).

[4] Zivotofsky v. Kerry, 576 U. S. ____ (2015), Opinion of THOMAS, J., (slip op., at 3).

[5] Id., 5-6.

[6] Id., 8.

[7] Id., 1.

[8] Id., 15.

[9] Id., 16.

[10] Id., 22.

[11] Id.

[12] Zivotofsky, supra, SCALIA, J., dissenting, (slip op., at 19).

[13] Id., 8.

[14] Id., 16.

[15] Id.

[16] Id., 17, citing Assn. of the Bar of the City of New York, Special Committee to Study Passport Procedures, Freedom to Travel 6 (1958); §8, 2 Stat. 205 (1803); §23, 11 Stat. 60–61 (1856); 22 U. S. C. §§212, 217a; §617(b); 102 Stat. 1755.

[17] Robert J. Reinstein, Recognition: A Case Study on the Original Understanding of Executive Power, 45 U. RICH. L. REV. 801 (2011), 814.

[18] Id.

[19] Id., 815.

[20] Id.