Alpert Final Paper - Grade: A- PDF

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Final Paper for Professor Ericson. Could have improved by giving examples in paper....

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Abigail Alpert US Constitutional Law and Politics I Professor Ericson 21 December 2020

An Analysis of Zivotofsky v. Kerry, Secretary of State (2015) On November 3, 2014, the case of Zivotofsky v. Kerry was argued before the Supreme Court.1 In this case, it was decided whether Manachem Zivotofsky, a person born in Jerusalem to parents who are citizens of the United States (US), could list his birthplace as Israel, instead of Jerusalem. The main dispute was whether § 214(d) of the Foreign Relations Authorization Act of 2003 (Act), a Congressional Act that would allow Manachem Zivotofsky to list his birthplace as Israel instead of Jerusalem, could constitutionally override the President’s recognition of foreign states.2 In other words, can both the President’s stance on the sovereignty of Jerusalem (which is that no nation has formal sovereignty over the city), and the Act coexist, allowing any US citizen born in Jerusalem to list his birthplace as Israel.2 In a 6-3 decision, the Supreme Court affirmed the District Court’s decision that the Act was unconstitutional.2 Justice Kennedy, Thomas, Ginsburg, Sotomayor, and Kagan were in the majority. Justices Scalia and Roberts wrote dissenting opinions. An analysis of the case is examined below. I.

Discussion of Oral Arguments During the oral arguments, the petitioner’s, represented by Alyza D. Lewin, argued first.

Lewin began the argument by stating that a passport, which designates a person’s a place of birth, is not a formal recognition by the US of that location’s sovereign status.1 Less than a

1 Zivotofsky v. Kerry. (n.d.). Oyez. Retrieved December 17, 2020, from https://www.oyez.org/cases/2014/13-628 (Oral Arguments)

2 Zivotofsky v. Kerry, 576 U. S. 1 (2015)

2 Alpert minute into the oral argument, Lewin was interrupted by Justice Kennedy.3 Upon this quick interruption, it is apparent that the Justices will be very active during the argument, by introducing new topics and asking multiple questions. Throughout her whole argument, Lewin is not able to finish complete responses before being interrupted by another question from the Justices, minus Justice Thomas who is silent throughout the whole hour. Lewin’s main argument is that § 214(d) isn’t a formal recognition of sovereignty that prompts a discussion of comparative situations of sovereignty such as Taiwan, North Ireland and Catalan, in which even the Justices seem to have disagreeing opinions over.3 It was surprising that discussions regarding the constitutionality of the Act only began in the end of the argument. It is not clear by the oral argument how the Justices will vote, but it is clear that the Justices are not hesitant to express any critique in Lewin’s argument. In the second half of the oral arguments, Solicitor General Donald B. Verrilli, Jr, representing the respondent, argues that § 214(d) denies the President power to give official recognition and forces the Executive Branch to deliver diplomatic communications that contradict the President’s position.3 As such, § 214(d) of the Act is unconstitutional.3 Similar to Lewin, the Justices quickly began asking Solicitor General Verrilli questions. It is interesting to note that Solicitor General Verrilli is able to speak significantly more than Lewin was able to. This could signify that the Solicitor General is making a stronger argument. For both the petitioner and respondent, the Justices seemed eager to understand and tried to even help both counsels make better arguments by clarifying their points or asking counsel to talk about specific subjects. In the end of oral arguments, Lewis was able to speak again. This time the tone of the Court shifted. Justice Kagan and Sotomayor were more critical in their questions to Lewis. This could signify how those Justices will vote. Some Justices spoke more than others, and as 3 Zivotofsky v. Kerry. (n.d.). Oyez. Retrieved December 17, 2020, from https://www.oyez.org/cases/2014/13-628 (Oral Arguments)

3 Alpert mentioned previously, Justice Thomas did not speak at all. This does not come to a surprise as each of the Justices is known to behave in their own unique way during oral arguments. As mentioned before, there was minimal discussion of the constitutionality or previous court cases that could act as precedent which makes the outcome of the case less difficult to predict. Additionally, it is difficult to gauge if more criticism is an indication of how a Justice will vote.

II.

Discussion of Decision Justice Kennedy wrote the opinion on this case, which was released on June 8, 2015.4 The

facts of the case are as follows. Zivotofsky was born to US citizens living in Jerusalem. 4 His mother asked Embassy officials to list his birthplace as “Jerusalem, Israel” on his passport, instead of “Jerusalem” based on the Foreign Relations Authorization Act passed in 2003.4 §214(d) of the Act states that for ‘“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 shall, upon the request of the citizen of citizen’s legal guardian, record the place of birth as Israel”’. 4 Embassy officials refused to put Zivotofsky’s birthplace as “Israel” due to the Executive Branch’s position that the US does not recognize any country as having sovereignty over the city of Jerusalem. 4 Zivotofsky’s parents objected to the decision and sued on his behalf in the United States District Court for the District of Columbia. 4 The procedural history is as follows: The District Court dismissed the case reasoning it presented a nonjusticiable political question and that Zivotofsky lacked standing. 4 The Court of Appeals for the DC Circuit reversed the standing issue but affirmed the District Court’s political question determination.4 The Supreme Court granted certiorari and determined that the question of § 214(d)’s constitutionality is not a question reserved for political branches.4

4 Zivotofsky v. Kerry, 576 U. S. 1 (2015)

4 Alpert The Supreme Court addressed two questions to resolve the interbranch dispute between Congress and the Executive. First, does the President have the exclusive power to grant formal recognition to a foreign state?5 Second, if he does, can Congress command him to issue a passport designation that contradicts his recognition determination? 2 The Supreme Court holds the answer to the first question is yes, the President does have exclusive power to recognize foreign sovereigns. 5 The Supreme Court holds in regard to the second question that no, Congress cannot command the President to contradict a recognition determination. 5Therefore, § 214(d) of the Act infringes on the executive’s recognition power and is unconstitutional. This means that Zivotovsky, and any other person born to US parents in Jerusalem, will have to list Jerusalem, and not Israel, as their place of birth on a passport. The rationale for the first issue is supported by the Constitution’s text and structure, precedent, and history. When looking at the structure and text of the Constitution, there is no mention of the term “recognition” in Article II or elsewhere, but there is the Reception Clause.5 According to the Reception Clause, the President has the power to receive ambassadors (exclusively), make treaties, and appoint ambassadors. 5 This establishes recognition of the sovereignty of the sending nation. 5 Congress, on the other hand, has no constitutional power allowing the body to initiate diplomatic relations with foreign nations.5 Therefore, this power is exclusive.5 Justice Kennedy says that “recognition is a matter on which the nation must speak with one voice.5 That voice must be the President’s.5 Secondly, Justice Kennedy relies on the framework established in Youngstown Sheet & Tube Co. v. Sawyer.5 In this case, The President’s refusal to implement § 214(d) falls into Justice Jackson’s third category established in the framework.5 Although the situations are not equivalent, Justice Kennedy believes the precedent established in Banco Nacional de Cuba v. Sabbatino (1964) , Pink, supra at 229, and Williams v. Suffolk Ins. Co. (1839) supports the President sole authority over recognition.5 Third, the framers 5 Zivotofsky v. Kerry, 576 U. S. 1 (2015)

5 Alpert believe that receiving an ambassador was equivalent to recognizing the sovereignty of the sending nation.6 Therefore, recognition power falls within the Reception Clause.6 Furthermore, the Reception Clause gives the President the power to both receive ambassadors and acknowledges the President’s power to recognize (or decline to recognize) other nations and their territorial bounds alone.6 There are numerous historical examples to support this mentioned in Justice Kennedy’s opinion. Moving on to the second issue, if Congress could command the President to contract a recognition position, then it could override the President’s recognition determination. This is not to say that Congress does not have other substantial powers over foreign affairs, which it has many.6 The fact is that when Zivotofsky was born, it was US policy that neither Israel nor any other country had sovereignty over Jerusalem. 6 Therefore, § 214(d) of the Act contradicts with this long-standing Executive branch policy. 6 Additionally, § 214(d) of the Act gives Congress control regarding the President’s communication over formal recognition, which subsequently, also gives Congress recognition power. 6 As established in the rational for the first issue, the President’s power is exclusive following the framework established in Youngstown. Therefore, Congress does not have the power to directly contradict it, and therefore, Congress cannot force the President to contract his previous statement as well. 6 There is also historical support of this decision. 2 It has long been tradition that a passport’s place of birth designation acts as an official executive statement implicating recognition. 6 Many of the Justices published their Concurrence and Dissenting opinions. Justice Breyer wrote a concurring opinion in which he wrote that he agrees with the majority’s decision but believed that the case continues to pose a political question inappropriate for judicial resolution.7

6 Zivotofsky v. Kerry, 576 U. S. 1 (2015) 7 Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Breyer, S. concurring opinion)

6 Alpert Justice Thomas’s opinion is both a concurrence and dissent in part. Justice Thomas agrees that the Act does not fall within Congress’ enumerated powers and as such violates the constitutional allocation of power.8 He joins the majority only in the portion of the judgement making § 214(d) unconstitutional as applied to passports and dissents on the remainder of the judgement.8 Justice Scalia filed a dissenting opinion and was joined by Justice Alito. Opposite of what Justice Kennedy writes, Justice Scalia believes you cannot rely on the constitution, precedent, or history as all three do not provide evidence for making the President solely responsible for the recognition of foreign powers.9 Justice Scalia agrees with Zivotofsky’s argument that the Act in question has nothing to do with recognition.9 The rationale is that there is no legal commitment made by the President and a citizen’s birthplace on a passport has no effect under international law.9 Textually, Congress is not prohibited from using its ordinary legislative powers to take sides in foreign disputes over sovereignty based on Article I.9 Justice Scalia gives a historical example to support that of the Gulf War and Congress’ support for Kuwait to claim its territory.9 Additionally, Justice Scalia points out that there is no precedent supporting the decision of the Court, in which Justice Kennedy disagrees.9 Finally, Justice Scalia criticizes one of Justice Kennedy’s main arguments that “the nation must have a single policy” and warns that this decision sets precedent for the erosion of the structure of separate and qual powers.5 Lastly, Chief Justice Roberts wrote a dissenting opinion and was joined by Justice Alito. He disagrees with the majority’s use of United States v Curtiss-Wright Export Corp which gives the President exclusive power in diplomatic relations.10 He believes the Court’s precedents have 8 Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Thomas, C. concurring/dissenting opinion)

9 Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Scalia, A. dissenting opinion) 10 Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Roberts, J. dissenting opinion)

7 Alpert not granted the Executive this much power.11 It is fact that this is the first case in controversy between Congress and the President over the recognition power.11 Like Scalia, both believe there is no precedent for this case and that § 214(d) does not infringe on the President’s recognition power. Even with hindsight, the Court’s final decision was difficult to predict given the trajectory of the discussions observed during the oral arguments. The Justices were active in the conversation, asked critical factual and hypothetical questions, and tried to find relevant historical examples for both sides of the oral arguments in order to understand which of Congress’ actions are constitutional and which are not. The Court’s final decision is indicative of how the majority of the Justices in the court interpret the Constitution, which goes back to the longstanding debate of textualism vs originalism vs living constitution. This is seen in how Justice Kennedy and Justice Scalia rationalize their interpretations of the Recognition Clause in the Majority’s opinion and the dissenting opinions of this case.

11 Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Roberts, J. dissenting opinion)

8 Alpert References Zivotofsky v. Kerry. (n.d.). Oyez. Retrieved December 17, 2020, from https://www.oyez.org/cases/2014/13-628 (Oral Arguments) Zivotofsky v. Kerry, 576 U. S. 1 (2015) Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Breyer, S. concurring opinion) Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Thomas, C. concurring/dissenting opinion) Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Scalia, A. dissenting opinion) Zivotofsky v. Kerry, 576 U. S. 1 (2015) (Roberts, J. dissenting opinion)...