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 from buying goods or services from any person doing business with Myanmar (also called Burma). In another, it struck down a California law that required any insurer doing business in that state to disclose information about all policies it sold in Europe between 1920 and 1945. But the Court’s references to the doctrine in Zivotofsky relate only to the president’s recognition power. Nothing in the opinion implies that the one-voice doctrine narrows any of the long-established powers that Congress exercises in other areas.
The Court referred to the one-voice doctrine as a “functional consideration”—a practical concern relating to a branch’s particular institutional advantages in exercising a given power. “Unlike Congress,” the Court noted, “the President is … capable of engaging in the delicate and often secret diplomatic contacts that may lead to a recognition decision.” Some suggest that this approach could be a formula for justifying across-the-boards presidential unilateralism. But functionalism cuts both ways. In future disputes, institutional attributes could easily point toward predominant congressional power. Unlike the executive, Congress can ask pointed questions, bring diverse viewpoints to bear, build a consensus, and sell a policy to the public. Absent a national emergency, such decisive functional advantages would counsel in favor of including the legislative branch in a decision to introduce troops into combat, impose economic sanctions, or enter into a mutual security commitment.
Nothing in Zivotofsky makes a future presidential victory more likely. The opinion’s greatest significance lies in its treatment of two earlier, conflicting precedents. The Court deflated the executive’s perennial favorite, the 1936 Curtiss-Wright case, and resurrected an all-but-forgotten opinion of Chief Justice John Marshall that tightly circumscribed presidential power, Little v. Barreme (1804).
For its part, Curtiss-Wright implied that the president, as the “sole organ of the nation in its external relations,” has exclusive authority over foreign policy generally; no wonder, then, that the Obama administration cited Curtiss-Wright no fewer than ten times in its Zivotofsky pleadings, claiming broad, undefined foreign affairs powers. But Curtiss-Wright’s sweeping language, the Court said in Zivotofsky, was merely dicta—it was not necessitated by the facts of that case, in which President Franklin Roosevelt initiated an arms embargo that Congress had authorized, not prohibited. The Court proceeded to reject the Obama administration’s claim of “unbounded power” in relying upon Curtiss-Wright. “It is Congress that makes laws,” the Court said, “and in countless ways its laws will and should shape the Nation’s course.”
The more important precedent, the Zivotofsky Court suggested, is Little v. Barreme. The 1804 case is significant because it involved the exercise of the president’s commander-in-chief powers during the undeclared naval war with France in the 1790s. In it, the Marshall Court held that an act of Congress prohibiting the seizure of a certain ship trumped a military order requiring it. “The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue,” the Zivotofsky Court said, citing Little. “It is not for the President alone to determine the whole content of the Nation’s foreign policy.” These are not words, or citations, in which an imperial president could take much comfort.
It remains to be seen how much Little will influence the resolution of future foreign affairs controversies, such as the constitutionality of the War Powers Resolution or the validity of a nuclear deal with Iran. Judicial decisions resolving foreign policy disputes are heavily fact-dependent. Precedents inevitably are elastic. But beyond the narrow confines of recognition, nothing in Zivotofsky makes a future presidential victory more likely.