The Supreme Court on Monday ruled that the power to recognize foreign nations belongs to the president alone, resolving a dispute between the executive branch and Congress over the American position on the status of Jerusalem.
The decision came in connection with a passport issued to Menachem Binyamin Zivotofsky, who was born in 2002 to U.S. citizens living in the contested capital. Zivotofsky’s parents had asked the U.S. Department of State to list the place of birth on his passport as “Jerusalem, Israel.” The department declined, citing a longstanding policy of neutrality on the status of the city. Zivotofsky’s passport would list only “Jerusalem” as his place of birth, the department determined.
Zivotofsky’s parents sued, charging that a law passed in 2002 requires the Secretary of State to identify citizens born in Jerusalem who so request as being born in Israel, a position at odds with the policy of presidents dating to the Oslo Accords, which call for Jerusalem’s status to be resolved through negotiation. Though a trial judge declined to resolve the dispute, which the judge concluded presented a question committed to the legislative and executive branches of government, the D.C. Circuit Court of Appeals later sided with the executive branch, declaring the statute to be unconstitutional.
By a vote of 6 to 3, the Court agreed, holding that the Constitution gives the president the exclusive right to recognize foreign governments and nations. “The President’s exclusive recognition power encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including territorial bounds,” Justice Kennedy wrote for the majority. “Albeit limited, the exclusive recognition power is essential to the conduct of presidential duties.”
“The formal act of recognition is an executive power that Congress may not qualify,” he added.
In arriving at its determination, the majority looked to the framework for assessing exercises of executive power first articulated by the Court in 1952, when the justices invalidated a move by President Truman to seize the nation’s strike-bound steel mills during the Korean War. According to that analysis, when the president takes measures that are incompatible with a congressional mandate, the president’s power, as Kennedy explained, “must be both ‘exclusive’ and ‘conclusive’ on the issue.”
The majority traced debates over the power to recognize nations to 1793, when President Washington, without consulting Congress, authorized diplomatic relations with the revolutionary government of France. “Congress expressed no disagreement with this position, and [the French ambassador’s] reception marked the Nation’s first act of recognition—one made by the president alone,” wrote Kennedy.
According to the Court, Congress also honored a decision by President Monroe not to recognize Argentina and Chile initially as those republics cast off colonization by Spain, as well as a determination by President Jackson to recognize Texas when it ceded from Mexico and President Lincoln’s decision to recognize Liberia and Haiti.
Similarly, as the majority noted, Congress acceded to President McKinley’s opposition to recognizing Cuba when it separated from Spain in 1898 and to President Carter’s recognition of the People’s Republic of China instead of Taiwan as the government of China.
Though the recognition power belongs exclusively to the president, Congress has other ways to disagree with the executive branch in the conduct of foreign relations, the majority noted. As Kennedy observed, the Constitution authorizes the legislature to decline to confirm an ambassador, to put in place an embargo or to declare war.
“From the face of [the statute], from the legislative history, and from its reception, it is clear that Congress wanted to express its displeasure with the president’s policy by, among other things, commanding the executive to contradict his own, earlier stated position on Jerusalem,” Kennedy wrote. “This Congress may not do.”
For their part, the Court’s dissenters rejected the majority’s view of the separation of powers at issue. “I agree that the Constitution empowers the president to extend recognition on behalf of the United States, but I find it a much harder question whether it makes that power exclusive,” wrote Justice Scalia, who took the unusual step of reading his dissent from the bench.
Chief Justice Roberts, writing separately, called the ruling unprecedented. “Today’s decision is a first: Never before has this Court accepted a president’s direct defiance of an Act of Congress in the field of foreign affairs,” he wrote.
U.S. and Palestinian officials welcomed the ruling, while the Israeli government declined to comment. “This is an important decision which accords with international resolutions and the resolutions of the U.N. Security Council and General Assembly,” a spokesman for Palestinian President Mahmoud Abbas told Reuters.