All this fuss over one line.

Photographer: Victor J. Blue/Bloomberg

Obama Holds Trump Card Over Passports

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Remember the days of the George W. Bush administration, when conservatives liked executive power and liberals criticized it? Those days are gone. On Monday, the U.S. Supreme Court's liberals powered a 6-3 decision giving President Barack Obama exclusive executive power to decide how to label the birthplace of Jerusalem on U.S. passports. The much-anticipated case, Zivotofsky v. Kerry, will become a landmark in the constitutional law of the separation of powers. But the weird politics of its lineup will confound students for generations, unless they take account of both changes in the party in the White House and the gravitational pull of U.S. Middle East policy.

The facts of the case were pretty simple. Menachem Zivotofsky was born in Jerusalem in 2002 to American parents. According to long-standing State Department policy, an American born in Jerusalem doesn't get the word “Israel” printed on his passport under place of birth; he or she gets the word “Jerusalem.” The State Department's reason is that the U.S. doesn't recognize any country as possessing sovereignty over Jerusalem.

Zivotofsky’s parents wanted his passport to say Israel. Their basis was a law passed by Congress in 2003 requiring the secretary of state to list Israel as a place of birth on the passport of a U.S. citizen born in Jerusalem “upon the request of the citizen or the citizen’s legal guardian.”

The State Department refused to grant the request, creating a constitutional conflict between executive policy and Congress. The court resolved the issue by deciding on behalf of the president. The opinion for the court was written by swing voter Justice Anthony Kennedy, and joined by the court’s four stalwart liberals. Justice Clarence Thomas concurred separately in the crucial part of the judgment, but didn't join Kennedy. Sharp dissents came from the conservatives Justice Antonin Scalia and Chief Justice John Roberts, joined by Justice Samuel Alito.

Legally, Kennedy's opinion for the court purported to apply what has become the controlling authority in separation of powers cases: a solo concurrence by the great Justice Robert Jackson in the 1952 case Youngstown Sheet and Tube Co. v. Sawyer, also known as the steel seizure case. In his astoundingly pragmatic opinion holding that Harry S. Truman lacked authority to seize control of the national steel mills, Jackson invented from whole cloth a three-part framework for deciding separation of powers cases. If the president acts with congressional approval, “his authority is at its maximum.” If Congress is silent, the president's actions are in “a zone of twilight” of possibly concurrent authority. And when the president acts against the will of Congress, his authority is at “its lowest ebb,” consisting only of the president's inherent powers “minus any constitutional powers of Congress over the matter.”

Kennedy admitted that in this case, the president was acting against Congress’s wishes, and was therefore at the lowest ebb of his powers. But relying on the structure of the Constitution, precedent and history, Kennedy concluded that the president has the exclusive power to recognize the sovereignty of foreign countries. From this power, Kennedy inferred that the president must have the exclusive authority to decide what appears on documents produced by his agents, such as the secretary of state, that might affect determinations of sovereignty.

The decision is a big win for executive power over foreign affairs -- upheld by liberals. Why? Part of the reason is certainly that Obama in his last term has been aggressive in the use of executive power, for example in unilaterally announcing he wouldn't enforce certain of immigration laws. At this moment in time, liberals are embracing executive power.

A further aspect is that the court’s liberals are more likely to see that Congress’s law was intended to intervene in U.S. Middle East policy on the side of Israel, potentially causing trouble for peace negotiations. Kennedy began his opinion by stating: “A delicate subject lies in the background of this case. That subject is Jerusalem.” Although I don't think he intended the rhetorical structure to parallel the opening of the Communist Manifesto, he did want to emphasize that Congress shouldn't be allowed to interfere with presidentially led peace efforts. Congressional interference in Obama's Iran negotiations can’t have been entirely absent from the majority's mind, either.

Thomas wrote separately to say that the president is a unitary executive. Thomas thinks that because the Constitution vests “the executive power” in the president, he can do more or less whatever the king of England could do under executive power as the framers (he imagines) would've imagined it. Thomas therefore concluded that the president can issue passports saying whatever he wants them to say.

Scalia was dismissive of Thomas's view, which he said would lead to “a presidency more reminiscent of George III than George Washington.” He also rejected Kennedy's view that the president's authority to recognize sovereigns included the authority to write whatever he wants on passports. Never shy with words, Scalia called this inference “a leap worthy of the Mad Hatter.” Scalia emphasized that Congress can pass laws relating to passports through its power over naturalization, and insisted that the president could safely disagree publicly with Congress on the question of recognition.

Meanwhile Roberts, who clerked for Justice William Rehnquist, who clerked for Jackson himself, weighed in to say that this was the first time the court had ever decided for the president when his power was at its lowest ebb. To this extent, Roberts, Jackson’s grand-clerk, was standing in defense of the Youngstown precedent that Kennedy had, in his view, abused.

But these legal arguments don't fully explain the conservatives’ sudden distaste for executive power. Except for Thomas, who gets points for consistency, the conservatives don’t like this president and his claims of executive power. And they may well not care much about using presidential authority to try to solve the Israel-Palestine conflict. This case will be one for the ages. But make no mistake: Contemporary politics helped shape the outcome.

  1. It could've gone further than it did. The executive asked the court to recognize its exclusive power over diplomatic relations and “the bulk of foreign affairs,” citing a case called U.S. v. Curtiss-Wright Export Co. Executive branch lawyers sometimes allude quasi-humorously to that case by saying “Curtiss-Wright so I’m right.” Kennedy’s opinion didn't buy the argument -- but that's an issue for another column.

  2. “A spectre is haunting Europe -- the spectre of communism.”

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To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net