Constitution Daily

Smart conversation from the National Constitution Center

Zivotofsky and the integrity of the Supreme Court

November 21, 2014 by Chris Edelson


As retired Justice David Souter observed several years ago, the Supreme Court usually decides questions that do not have an indisputably clear answer.  Because of this reality, even if we disagree with what the Court says about the meaning of the Equal Protection or Establishment Clause or the scope of congressional power under the Commerce Clause, it is difficult to say that the Court is simply wrong.  Matters that come before the Court are usually open to debate (that’s why they made their way to the Court in the first place), and reasonable people can reach different conclusions.  The Constitution and its meaning are not always clear.


The Supreme Court
The Supreme Court

Sometimes, however, it is indisputably clear what the Constitution means, and what the Court must do if it is to resolve an issue objectively and fairly. In such circumstances, the Court’s failure to get it right raises serious and troubling questions about the Court’s integrity or competence. The Zivotofsky v. Kerry case argued earlier this month is one such case.


At first glance, Zivotofsky seems to present a dispute with limited potential effect. Menachem Zivotofsky was born in Jerusalem in 2002, and his parents (both U.S. citizens) would like their son’s U.S. passport to list his place of birth as “Israel”. The U.S. State Department has refused to do so, citing a policy against recognizing any country as having sovereignty over the city, due to its sensitive and disputed status. The Zivotofskys rely on a 2002 law providing 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.” It is estimated that, at most, 50,000 people are potentially affected by this law or by the dispute over its applicability (it is not known how many in the potentially affected group –that is, people born in Jerusalem to parents who are U.S. citizens—would actually like to take advantage of the disputed statutory provision).


Here’s where the bigger problem emerges, the problem that the Court ought to resolve clearly and decisively. In opposing Zivotofky’s claim, the executive branch relies in part on the fantastic “sole organ” doctrine breathed into existence by Justice George Sutherland’s erroneous dicta in the 1936 Curtiss-Wright case.


In Curtiss-Wright (a case that did not actually involve any unilateral presidential action), Justice Sutherland declared that: “It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress”. (emphasis added). Justice Sutherland claimed that this description of presidential control over foreign affairs had a pedigree that could be traced back to a speech John Marshall gave in 1800.


When subjected to basic examination, however, Sutherland’s argument disintegrates. First, John Marshall had used the term “sole organ” as a member of Congress defending President John Adams’s decision to carry out an extradition treaty, not to defend any unilateral or plenary presidential power. Marshall meant that the President was the nation’s sole organ in carrying out a treaty ratified by the Senate. Second, even if Marshall really had said what Sutherland suggested –that the President has complete, exclusive control over foreign affairs—the Constitution would stand as a bar. The U.S. Constitution divides foreign affairs powers between the President and Congress. Article I gives Congress a number of powers in this area—regulation of commerce with foreign nations, the power to declare war, the Senate’s power to ratify treaties and confirm ambassadors. Finally, Sutherland’s own dicta is internally incoherent. After he solemnly refers to the President’s “delicate, plenary, and exclusive power” over foreign affairs, Sutherland immediately adds that “of course, like every other governmental power, [this power] must be exercised in subordination to the applicable provisions of the Constitution.” This makes very little sense. How can plenary and exclusive power be subject to limitation? But, of course, presidential power is subject to limitation—limits described by the powers over foreign affairs assigned to Congress. Perhaps even Sutherland did not mean what he seemed to say.


The problem is that Justice Sutherland’s haphazard dicta has been cited as the basis for dangerous executive overreach—including the false propositions that the President has exclusive control over the decision to order the use of military force, inherent authority to order warrantless surveillance, and can exclusively determine the meaning of the Geneva Conventions.


These claims, if correct, would place the President above the law. Fortunately, they are not correct.   Unfortunately, as long as Justice Sutherland’s dicta stands, it will be confidently cited by advocates of unchecked presidential power who want to brush a patina of respectability on their unfounded claims.


The Supreme Court has a golden opportunity to put this all to rest. The government cited Curtiss-Wright and the sole organ doctrine extensively in its brief to the Court, and the D.C. Circuit cited that case five times in its decision in favor of the executive. In an amicus brief, constitutional scholar Louis Fisher urged the Court to take this opportunity “to correct the erroneous dicta that appear in Curtiss-Wright.”


The current members of the Court did not get it wrong in Curtiss-Wright, a case decided long before they joined the Court.  But they have an opportunity and a responsibility to get it right now by making clear, once and for all, that the sole organ doctrine described in Curtiss-Wright is wrong.  If they fail to do so with the question squarely presented to them, the message they send will be that getting clear questions of constitutional meaning correct is not essential to the Court’s function.


Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.


Sign up for our email newsletter