David Adler: 'Illegality cannot attain legitimacy through practice'


April 3, 2014 

Standing on the doorstep of the U.S. Supreme Court, seeking a hearing before the nation's highest tribunal, is the case of Zivotofsky v. Kerry, the obscure origins of which belie its potential to become a landmark case in the realm of foreign affairs and national security and further expand the powers of the imperial presidency.

The D.C. Circuit Court of Appeals recently asserted for the first time in American history the existence of an exclusive presidential power of recognition - formal acknowledgement of the sovereignty of a foreign nation or government - broad enough to preclude Congress from interfering with the president's policy governing the terms of recognition.

Menachem Zivotofsky, like tens of thousands of American citizens, was born in Jerusalem. As a 3-year-old, his parents sought, on the authority of the Foreign Relations Authorization Act of 2002, declaration of "Jerusalem, Israel" as his place of birth on his U.S. passport.

There was a problem.

Since May 14, 1948, when President Harry Truman recognized the state of Israel, every American president has refused to recognize Israel's assertion of sovereignty over Jerusalem. The policy of the United States has been one of neutrality, seeking to avoid a determination on the status of Jerusalem, one of the most contentious issues in world history.

In that context, President George W. Bush signed the bill into law, but appended a signing statement in which he stated that the legislative directive that Jerusalem should be listed as part of Israel was unconstitutional and "impermissibly intruded" upon the president's exclusive power to grant recognition to foreign countries and determine the policy to govern the recognition.

Bush declared the president's recognition power trumped the constitutional authority Congress derived from provisions to regulate foreign commerce, immigration and naturalization, to determine the form and content of passports. President Barack Obama has maintained that position, and directed Secretary of State John Kerry to deny Zivotofsky's request.

As a consequence, Zivotofsky is a case of "first instance" - the first in our nation's history in which a court has been asked to resolve a clash between the president and Congress over the issue of recognition. The Supreme Court will decide at its conference Friday whether it will hear the case.

Presidential power to recognize foreign nations and governments has been exercised since the dawn of the republic, but it has never been viewed as exclusive preserve of the presidency. Indeed, Congress has enacted legislation that conferred recognition upon foreign countries. The circuit court's ruling in Zivotofsky represents yet another contribution to 75 years of judicial decisions that have fed the springs of executive power, despite the fact that they find little support in the Constitution.

The D.C. circuit acknowledged that the Supreme Court has never "held" that the president enjoys either an exclusive recognition power or the sole authority to determine the policy to govern the act of recognition, but said that, as an inferior court, it is required to treat "dicta" as authoritative. What had formerly stood as dicta was now law, and presidential exercise of the recognition power was beyond the authority of Congress to regulate or diminish.

The circuit's court's indulgence of dicta - judicial commentary unrelated to the issue at hand - has transformed a narrow, clerk-like, ministerial presidential duty to receive ambassadors and foreign ministers into a towering structure of discretionary power to conduct American foreign policy. Dicta piled upon dicta. This is judicial error running riot, and the Supreme Court should correct it. Justice Felix Frankfurter was right when he wrote, "Illegality cannot attain legitimacy through practice."

Adler is the director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus Professor of Public Affairs. Disclosure: Various briefs filed in the case have cited and quoted Adler's scholarly writings on the recognition power.

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