Richard A. Epstein
(Peter and Kirsten Bedford Senior Fellow and member of the Property Rights, Freedom, and Prosperity Task Force)
Congress says yes. The State Department says no. So what’s U.S. policy?
In modern political life, symbolic issues are often the most difficult to resolve. Nowhere is that more true than in international relationships, where passions often run hot, as with the ongoing dispute between Israelis and Palestinians over the legal status of Jerusalem. This debate is now playing itself out within the three branches of U.S. government, provoking a serious constitutional debate over separation of powers that next term will land in the lap of the United States Supreme Court.
Young Menachem Binyamin Zivotofsky, an American, was born in Jerusalem in 2002. Shortly thereafter, his parents requested that the U.S. State Department list Israel as his birthplace on his passport. Under long-standing State Department policy, Jerusalem is not regarded as part of either Israel or Palestine, but is treated as a neutral city whose ultimate status will be determined by negotiations between the two parties. Hence State Department policy requires that only Jerusalem be listed as the place of birth, without mention of Israel. Congress, however, had other ideas. With scant attention to any of the constitutional niceties, in 2002 Congress adopted a statute that was on a collision course with State Department policy:
28 United States Code Section 214d RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. — 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 or the citizen’s legal guardian, record the place of birth as Israel.
The explicit conflict between the congressional command and the State Department policy prompted then-President George W. Bush (like all previous presidents of both parties) to note in his presidential signing statement that this provision encroached on his presidential prerogative to be the sole organ of the American government in foreign relations.
Zivotofsky’s parents filed a lawsuit on their son’s behalf challenging that claim, which Hilary Clinton, as the current secretary of state in the Obama administration, continues to resist in good bipartisan fashion. The many conflicts that arise here are those between two branches of government, not two political parties.
First, there is the question of whether the statutory provision in question confers any “justiciable” right—i.e. one that can be decided in court—upon the individual applicant. In its defense of this suit, the United States government has argued that any disputes between Congress and the president should never end up in the lap of the courts, but should be handled by negotiations between the two branches of government.
Congress’ statute was on a collision course with State Department policy.
At one level, this argument is rooted in the concept of “standing,” which claims that young Zivotofsky has no protected interest in going to court. As a technical matter, the one clear place for the standing doctrine is as a bar to advisory opinions that either the president or Congress might seek from the courts.
Yet in this instance, advice is not what is sought. What is demanded is that the government issue Zivotofsky a passport stamped with Israel as his place of birth. No matter how narrow the definition of standing, Zivotofsky is in a unique position to demand that the government issue that document. Thus the case is far removed from those cases in which citizens or taxpayers seek to enjoin or compel government action; in such cases the Supreme Court has routinely denied standing. But as long as the State Department resists Zivotofsky’s demands, he has standing to challenge its action, just as if it had refused to issue him a passport at all.
Second, the Secretary of State is insisting that passing the statute in question is beyond the power of Congress because it deals with foreign affairs—an area that the Constitution entrusts exclusively to the president.
The Constitution actually does no such thing. For starters, it is clear that Congress has the power to “establish a uniform rule of naturalization” (of foreigners), to “regulate commerce with foreign nations”, to “declare war” (against presumably foreign nations), and to control appropriations for the armed forces of the United States.
Noticeably missing from this list, however, is an explicit congressional power to authorize, let alone regulate, the ability of the president and the executive branch to issue passports. That textual lacuna has never stopped anyone before and it will not stop anyone today. Thus, 28 U.S.C. § 211a confers on the secretary of state the “authority to grant, issue, and verify passports.”
So here is the ticklish position for the secretary of state: if Section 211a can authorize the secretary of state to issue passports, why can’t section 214d limit and direct how that power is exercised? To this fair question, the State Department offers two answers, one procedural and the other substantive.
Procedurally, the State Department claims that the federal courts do not have “subject matter jurisdiction” to hear the case because the entire matter ultimately dissolves into a bare-knuckle political dispute between Congress and the executive branch. By using the words “subject matter jurisdiction,” the secretary of state claims that the courts have no power over the executive branch to do what they always do—deal with individual grievances under the law.
At one level, that claim is downright scary. Does the president really believe, for instance, that the government can detain individuals without the judicial oversight normally supplied by the writ of habeas corpus? If Congress orders the president to bring the prisoners forward for a hearing, is the question of imprisonment beyond the power of the courts to hear? That cannot be.
Does the Constitution entrust foreign affairs exclusively to the president?
The political question doctrine—yet another facet of justiciability— resonates when the issue is whether the courts are asked to stop military activities in Vietnam because Congress did not “declare” a war for which it appropriated funds. Yet that large political debate catches no particular individual in the crossfire. Hence, courts are well-advised to steer clear of those disputes. But in this case, the secretary of state has chosen to defy an explicit statutory command that confers rights on discrete persons. Surely, on this issue, some judicial response is appropriate.
On the substantive issue, the secretary of state’s position is that Section 214d (dealing with Jerusalem) is unconstitutional insofar as it purports to tell the State Department how to run foreign policy.
The great irony here is that the presidential claim for control over all foreign affairs is, constitutionally, just as shaky as the congressional claim. As a general matter, setting the ground rules for issuing passports looks like the kind of legislative issue entrusted not to the president but to Congress.
The basic constitutional command requires that the president “take care that the laws be faithfully executed.” Inserting the little word “be” suggests that the president cannot escape his duty to implement legislation by letting subordinate officers in the executive branch flout the law.
At this point, the use of the word “shall” in section 214d seems to put a hammerlock on the secretary of state. Section 214d says, “For … a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Yet the secretary of state argues, implausibly, that the word “shall” in this context really means “may,” so that she “may” (or “may not”) follow a statute that is now reduced to an empty set of words.
More dramatic is the secretary of state’s other claim, which is that Section 214d is unconstitutional because it intrudes into matters of foreign affairs that are exclusively reserved to the executive branch. But search as one may, there is no explicit authority granting the president power to issue passports in Article II of the Constitution, which deals with the executive branch. Issuing passports certainly does not fall to the president in his role as the commander-in-chief of the armed forces. After all, most passports are not war-related.
The Constitution is a fragile and imperfect document.
The secretary of state takes great store in the provision that allows the president of the United States to “receive ambassadors and other public ministers”—as if there were anyone else in Washington who could do that job. But the leap from that modest power to full control over foreign affairs rests on a chain of fanciful inferences with little to no textual backing.
To be sure, the Supreme Court has often said that the power to receive ambassadors necessarily entails the power to decide whether or not to recognize the government that purports to send them, which in turn requires the president to have full control over foreign policy. But by such logic, Congress’s control over foreign commerce and its power to declare war also gives it the power to decide who counts as friend or foe to the United States, and thus to set legislative ground rules telling the president which ambassadors to receive and which to turn away from our doors.
Neither of these attenuated chains of power is the slightest bit persuasive. Indeed, the best textual reading of the Constitution is that it contains a huge gap. Every nation has to have a system of passport control, and our Founding Fathers just forgot to give anyone explicit control over its organization and operation.
How then should the impasse be resolved? There are two organizing principles, neither of which is decisive.
The first says that once there is an essential federal function, the usual division of power between the president and Congress should apply. Congress sets the rules of the game, while the president carries them out.
The second approach cares little for abstract principle but holds instead that in the absence of clear textual authorization one way or the other, the current Supreme Court should stick to its earlier precedents, which in this case, without question, are weighted heavily in favor of the president. On that view, Congress upsets the presidential prerogative by forcing the secretary of state to issue passports marked Israel for American citizens born in Jerusalem.
That position has prevailed thus far in two lower courts, and the betting here is that it will prevail again in the Supreme Court. The likelihood of success is not rooted in the argument’s intrinsic merit, but rather in its historical pedigree, which the president defends ferociously while Congress moves on to other business.
But whatever the eventual outcome, this entire episode should serve as a sober reminder that the Constitution is a fragile and imperfect document that largely survives by the good will and mutual forbearance of our key institutional players. As such, historical practice necessarily counts as much as, and in some instances even more than, original meaning.
The point here is not to belittle, let alone reject, rigorous canons of interpretation—canons that the Supreme Court has violated on more than one occasion. Rather, it refers to the more humbling point that it is not possible to discern any original intention on a question that the framers of our Constitution simply forgot to address. The larger lesson is a plea for patience in the fervent hope that this dispute will quietly resolve itself before any real damage is done. Here, as in so many other cases, the Constitution is as much a matter of statecraft as it is of textual interpretation.
Richard Epstein is the Peter and Kirsten Bedford Senior Fellow at Hoover. He is also the Laurence A. Tisch Professor of Law at New York University. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are The Case Against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).
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