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Historical Gloss, the Recognition Power, and Judicial Review

Published online by Cambridge University Press:  20 January 2017

Curtis A. Bradley*
Duke Law School
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The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of 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.” Both the Bush Administration and the Obama Administration declined to comply with this statutory directive. In Zivotofsky v. Kerry (Zivotofsky II), the Supreme Court sided with the executive branch, holding that Section 214(d) unconstitutionally interferes with the exclusive authority of the President to recognize foreign sovereigns.

Agora: Reflections on Zivotofsky v. Kerry
Copyright © American Society of International Law 2015


1 Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, 1366 (2002).

2 Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076 (2015) [hereinafter Zivotofsky II].

3 See generally Bradley, Curtis A. & Morrison, Trevor W., Historical Gloss and the Separation of Powers 126 Harv. L. Rev. 411 (2012)Google Scholar.

4 The Supreme Court noted in Zivotofsky II that, because it had concluded that the President’s recognition power was supported by specific constitutional text, it “need not consider whether or to what extent the Vesting Clause . . . provides further support for the President’s action here.” Zivotofsky II, 135 S.Ct. at 2086. Justice Thomas was the only member of the Court to endorse a reading of the Vesting Clause that would encompass residual powers, see id. at 2097-2098 (Thomas, J., concurring), and Justice Scalia’s dissent (joined by Chief Justice Roberts and Justice Alito) seemed critical of the idea. See id. at 2126 (Scalia, J., dissenting) (referring to Justice Thomas’s “assertion of broad, unenumerated ‘residual powers’ of the President”). For differing academic accounts of the Vesting Clause, compare Prakash, Saikrishna B. & Ramsey, Michael D., The Executive Over Foreign Affairs 111 Yale L.J. 231 (2001)CrossRefGoogle Scholar, with Bradley, Curtis A. & Flaherty, Martin S., Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004)Google Scholar.

5 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (Jackson, J., concurring).

6 Id. at 635.

7 Id.

8 Id. at 637.

9 Id.

10 Id. at 638.

11 Id. at 610 (Frankfurter, J., concurring).

12 Id. at 610-11.

13 See, e.g., Medellin v. Texas, 552 U.S. 491, 531-32 (2008); Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion); Dames & Moore v. Regan, 453 U.S. 654, 686 (1981).

14 NLRB v. Canning, 134 S. Ct. 2550 (2014).

15 Id. at 2559 (citations omitted).

16 Id. at 2559-60. For analysis of this decision, see Bradley, Curtis A. & Siegel, Neil S., After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession, 2014 Sup. Ct. Rev. 1.Google Scholar

17 Zivotofsky II, 135 S.Ct. at 2091.

18 Id.

19 See Reinstein, Robert J., Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013)Google Scholar. Reinstein concludes that historical practice “provides little support for any claim of an exclusive recognition power,” id. at 8, although he also acknowledges that “[a] possible interpretation of the post-ratification history is that Congress cannot overturn an executive recognition decision but can take other actions that determine the policies by which the recognition is effectuated,” id. at 56 n. 370.

20 See Zivotofsky II, 135 S.Ct. at 2092.

21 See id. at 2092-2093.

22 Id. at 2094.

23 Cf. Bradley, Curtis A., Customary International Law Adjudication as Common Law Adjudication, in Custom’s Future: International Law in A Changing World (Bradley, Curtis A. ed., forthcoming)CrossRefGoogle Scholar (describing how the interpretation of customary international law in international adjudication often resembles common law decisionmaking).

24 See Zivotofsky II, 135 S.Ct. at 2079, 2086.

25 See generally Bradley, Curtis A. & Siegel, Neil S., Constructed Constraint and the Constitutional Text, 64 Duke L.J. 1213 (2015)Google Scholar; Fallon, Richard H. Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987)CrossRefGoogle Scholar.

26 Cf.Bradley, Curtis A., Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773, 825 (2014 Google Scholar) (finding that, while modern historical practice supported a unilateral presidential power of treaty termination, “there is no significant historical practice to support the Exec utive Branch’s claim” that such a power is exclusive).

27 Zivotofsky II, 135 S.Ct. at 2088.

28 See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103-236, § 132, 108 Stat. 395.

29 See Zivotofsky II, 135 S.Ct. at 2107 (Thomas, J., concurring) (“Because the President otherwise treats Taiwan as a geographical area within the People’s Republic of China, listing Taiwan as the place of birth did not directly conflict with the President’s prevailing practices.”).

30 Id. at 2097, 2102 (Thomas, J., concurring).

31 See id. at 2114 (Roberts, C.J., dissenting). Chief Justice Roberts also suggested that congressional acquiescence should not be credited in discerning exclusive presidential authority. See id. But cf. Myers v. United States, 272 U.S. 52, 163 (1926) (relying in part on congressional acquiescence in support of an exclusive presidential power of removal of executive officers).

32 Zivotofsky II, 135 S.Ct. at 2122 (Scalia, J., dissenting).

33 Id. at 2125 (Scalia, J., dissenting).

34 For a comparable issue concerning international adjudication of customary international law, see Katzenstein, Suzanne, International Adjudication and Custom Breaking by Domestic Courts, 62 Duke L.J. 671, 673 (2012)Google Scholar (“[F]or a specific class of cases—those involving custom breaking—international adjudication risks impeding the traditional process by which [customary international law] evolves.”)

35 Zivotofsky II, 135 S.Ct. at 2088.

36 See Goldsmith, Jack, Why Zivotofsky is a Significant Victory for the Executive Branch, Lawfare (June 8, 2015 Google Scholar, 3:44 PM).

37 See Bradley, Curtis A., Zivotofsky and Pragmatic Foreign Relations Law, Scotusblog (June 9, 2015 Google Scholar, 9:16 AM).

38 See, e.g., Sunstein, Cass R., Burkean Minimalism, 105 Mich. L. Rev. 353 (2006)Google Scholar.

39 Zivotofsky II, 135 S.Ct. at 2094.

40 Id. at 2088.

41 See id. at 2089.

42 Id. The Court’s disavowal of the Curtiss-Wright dicta and its endorsement of congressional authority in foreign affairs caused some commentators to see the decision as potentially serving to limit rather than expand presidential authority. See, e.g., Dorf, Michael, Zivotofsky May be Remembered as Limiting Exclusive Presidential Power, Dorf on Law (June 8, 2015 Google Scholar, 12:52 PM); Glennon, Michael J., Recognizable Power: The Supreme Court Deals a Blow to Executive Authority, Foreign Affairs Snapshot (June 23, 2015)Google Scholar.

43 The Court’s deference to the executive branch concerning the likely affect of enforcing Section 214(d) on U.S. foreign relations was subtle. In concluding that the statute had the effect of contradicting the executive branch’s recognition policy concerning Jerusalem, the Court quoted the D.C. Circuit’s finding to that effect. See Zivotofsky II, 135 S.Ct. at 2080. The D.C. Circuit’s finding in turn reflected deference to the executive branch. See Zivotofsky v. Secretary of State, 725 F.3d 197, 217 (D.C. Cir. 2013) (“We find the Secretary’s detailed explanation of the conflict between section 214(d) and Executive recognition policy compelling, especially given ‘our customary policy to accord deference to the President in matters of foreign affairs.’”) (citation omitted). During the oral argument in Zivotofsky II, Justice Kennedy, who ended up writing the majority opinion, indicated that he thought deference was appropriate. See Transcript of Argument, Zivotofsky v. Kerry, No. 13-628, at 18-19 (Nov. 3, 2014).

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