Constitution Check: Did presidential power suddenly grow much greater?

Lyle Denniston, the National Constitution Center's constitutional literacy adviser, breaks down the Zivotofsky decision and looks at how possibly the most important part of the decision rebuffed the Obama administration.

THE STATEMENTS AT ISSUE:

“For our first 225 years, no president prevailed when contradicting a statute in the field of foreign affairs….[In this decision], the court takes the perilous step – for the first time in our history – of allowing the president to defy an act of Congress in the field of foreign affairs.”

– Excerpt from an opinion by Chief Justice John G. Roberts, Jr., on Monday, dissenting from the Supreme Court ruling that struck down the Jerusalem passport law passed by Congress in 2002. Joining the Roberts opinion was Justice Samuel A. Alito, Jr.

“In the end, the decision…comes down to ‘functional considerations’ – principally the court’s perception that the nation ‘must speak with one voice’ about the status of Jerusalem. The vices of this mode of analysis go beyond mere lack of footing in the Constitution. Functionalism of the sort the court practices today will systematically favor the unitary president over the plural Congress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the people established for the protection of their liberty.”

– Excerpt from a dissenting opinion on Monday by Justice Antonin Scalia, in the Jerusalem passport case. The Chief Justice and Justice Alito joined that opinion.

WE CHECKED THE CONSTITUTION, AND…

At some point in their high school careers, most American students are likely to learn about the “Citizen Genet affair.” That figures in the early history of George Washington’s presidency because, single-handedly, the Frenchman Edmond-Charles Genet nearly wrecked the U.S. position of neutrality in the war between France and England. But that history was alive again in the Supreme Court on Monday, amid the constitutional fight in modern times between the White House and Congress over U.S. policy toward Israel.

After the French Revolution, that country’s new regime sent Genet to America as its ambassador. President Washington received him as an official gesture, thus giving the first U.S. recognition in history to the government of a foreign nation. (Ultimately, Washington and his Cabinet were so dismayed by Genet’s undermining of the neutrality policy that Washington asked that he be recalled. Facing the guillotine if he went home, for failing in his mission, he was allowed to stay in the U.S., became a citizen, and remained for life.)

Supreme Court Justice Anthony Kennedy on Monday revived that tale, briefly, as the court struck down a law passed by Congress in 2002. That law sought to put pressure on the White House to support the idea that Jerusalem was the capital of Israel – support that would have flatly contradicted the policy of several presidents of U.S. neutrality about which nation had sovereign power over Jerusalem.

The part of the law that was nullified by a six-to-three vote of the Justices directed the State Department to list “Israel” as the birthplace of any American who had been born in Jerusalem, and wanted that notation on their U.S. passport. A lad who was born in a Jerusalem hospital in 2002, to U.S. citizen parents, was rebuffed by the State Department in the family request to associate his birth with Israel. The case of that now-teenager, Menachem Binyamin Zivotofsky, sought enforcement of the Jerusalem passport law.

Refusing enforcement, and striking down the law, the court established for the first time the constitutional principle that, when it comes to U.S. recognition of foreign governments, that was an authority that the president alone could exercise, and Congress has no power to try to force the president’s hand in using that authority.

The case of Zivotofsky v. Kerry thus has taken its place along the continuum of history that has steadily expanded the power of the presidency, sometimes at Congress’s expense, especially in the field of foreign affairs. And thus, it was no surprise that there would be energetic dissents within the court, from Justices who worried afresh about further disturbing the supposed constitutional balance of power in the critical field of foreign affairs. The dissenters’ judicial protests echoed the political protests of observers who have long worried about what they call the “imperial presidency,” with steadily expanding authority that is said to rival that of any king.

This time, perhaps, that protest may have been at least somewhat overstated, when one considers the actual decision that the majority made in the opinion written by Justice Kennedy. In no way did the ruling foreclose Congress from an active role in foreign policy generally, and from a partner role in fashioning passport policy, or even from a significant legislative role in seeking to influence (though it could not actually control) what the White House does on the very question of formally recognizing foreign governments.

The Kennedy opinion went to considerable lengths to recount the remaining options that Congress has as either an ally or an adversary of the White House in diplomatic dealings, and those parts of the opinion were not lacking in sincerity.

However, what may turn out ultimately to have been the most important part of the decision, in a broader constitutional sense, was that the majority rebuffed the effort of President Obama’s administration to get the court to read the president’s authority in foreign policy far more broadly.

As presidential administrations have regularly done, the Obama legal team turned back to a 1936 decision by the Supreme Court, and the embrace in that ruling of the most emphatic power ever recognized for the presidency in foreign affairs. In United States v. Curtiss-Wright Export Corp., the court had said that the president “was the sole organ of the federal government in the field of international relations.”

The Obama lawyers suggested to the court that the true meaning of that precedent was that the Constitution gives the president “exclusive authority to conduct diplomatic relations,” as well as “the bulk of foreign-affairs power.”

Pointedly, Justice Kennedy wrote: “This court declines to acknowledge that unbounded power.” Such a sweeping declaration, he added, “presents different issues and is unnecessary to the resolution of this case.” It was, perhaps, a long overdue effort to put to rest the soaring rhetoric of the Curtiss-Writing decision.

Those parts of Monday’s opinion are not just soothing words for Congress’s ears: they are an invitation to Congress, if it wishes, to go on insisting on a role as a full partner in crafting American foreign policy. Congress loses on Jerusalem passports, but maybe not on much else.