On its face, the Supreme Court’s landmark decision this month in Zivotofsky v. Kerry looks like an ode to presidential power. In it, the Court, for the first time, struck down an act of Congress in the field of foreign affairs. The law had required the State Department to designate Israel as the nation of birth of certain Americans born in Jerusalem. For 60 years, though, the United States has recognized no country as having sovereignty over Jerusalem. When the Court invalidated the act, it affirmed that it is the exclusive power of the president to recognize foreign governments, stressing the need for the nation to speak with one voice.
It is easy to think that, with this decision, the Supreme Court handed the president an epic victory in its perpetual struggle with Congress to control the nation’s foreign policy.
That conclusion would be tempting but wrong. In fact, the Court’s opinion took nothing from Congress—and may actually have enhanced its power.
That the Court affirmed the president’s exclusive power to recognize foreign governments is unsurprising. Since President George Washington recognized the revolutionary government of France by receiving Citizen Genet as its representative, few have seriously believed that Congress could ever second-guess a president’s decision to recognize a foreign government. During the dispute following President Jimmy Carter’s recognition of the People’s Republic of China in 1979, congressional opponents challenged his authority to unilaterally terminate the United States’ mutual security treaty with Taiwan, but no one doubted that he had sole power to decide whether to derecognize Taiwan or recognize the PRC.
It is true that the Court’s opinion rests in part on the need for the United States to “speak with one voice.” The Court lifted the so-called one-voice doctrine from recent federalism cases in which it found states to have interfered impermissibly in the federal government’s foreign policy prerogatives. In one, for example, it struck down a Massachusetts law barring state entities
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