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One Kid's Passport Could Determine the Future of Presidential Power

For seven months in 2011, the United States carried much of the weight in NATO’s extensive Libya campaign. Now, an American-led coalition is pummeling targets in Iraq and Syria. Neither of these extensive military actions was ever voted on by Congress. And just in the last few weeks, word has spread that the president will “do everything in his power to avoid letting Congress vote” on a settlement with Iran. Together, these episodes paint a picture of unbridled presidential power over foreign policy. Next Monday, in Zivotofsky v. Kerry, the Supreme Court will have its best opportunity in decades to check this rapid expansion of executive authority.

On its face, Zivotofsky is about passports and Mideast politics. For decades, presidential policy has held that the sovereignty of Jerusalem is a “final status” issue, only resolvable through a regional peace agreement. As a result, American citizens born in Jerusalem have no country of birth listed on their passports. (Their passports read “Jerusalem” rather than “Jerusalem, Israel.”) But in 2002, Congress tucked language into a larger bill insisting that the State Department “shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” President Bush signed the law, but issued a “signing statement” explaining that the directive was unconstitutional and that he had no intention of obeying. Enter Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. Since his birth, his parents have waged a legal battle demanding that the State Department comply with the Congressional mandate. On Monday, the case goes before the U.S. Supreme Court.

As a matter of policy, the law is a foolish stunt. An eventual recognition of Israel’s sovereignty over much of Jerusalem—like the eventual recognition of a sovereign Palestine—is a moral necessity. But not all moral rights must be vindicated immediately. And it would be diplomatic malpractice not to use recognition as a tool for advancing American interests—for instance coaxing the parties to make concessions and reach a comprehensive settlement.

But constitutionality, not wisdom, is the question before the Court. And the constitutional question is more complicated: Can Congress force the president to issue passports in a manner that conflicts with his diplomatic objectives? Yes, argue the Zivotofskys, and for two main reasons: First, passports and diplomacy can be easily separated. After all, Congress invented passports (in 1856) and has passed all manner of related regulations and restrictions ever since. A 1994 law even allowed Taiwanese-born Americans to record “Taiwan” as their place of birth—over the objections of the State Department and despite the president’s official “one-China” policy. 

But the Zivotofskys’ deeper argument, and the one that could finally succeed in constraining presidential power, is that Congress actually has a robust role in foreign policy. The Constitution gives the president the power to nominate ambassadors and make treaties, but only with the “advice and consent of the Senate.” The president might be the commander in chief of the military, but only Congress can declare war. The president is instructed to “receive ambassadors,” but only Congress is authorized to “regulate commerce with foreign nations.” Similarly, argue the Zivotofskys, Congress plays a part in recognizing foreign governments (and has done so occasionally in the past). So when Congress legislates on issues of recognition and foreign affairs, the president cannot ignore an explicit directive. Presidential discretion may be wide in foreign policy, but only because the demands of secret negotiations and swift diplomacy prevent us from relying on the plodding pace of Congressional deliberation. The principle of Congressional supremacy, however, remains: When Congress finally stirs itself to legislate, the president must obey.

Like President Bush before him, Obama rejects this view. Instead, his administration argues that presidential foreign policy power (and particularly the power to recognize foreign governments) is not simply a license to act in Congress’ absence; it is an “inherent constitutional authority.” In diplomacy, the president reigns supreme and he has no obligation to obey Congress’ instructions. As Justice George Sutherland wrote in 1936: “The international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” The president, and he alone, speaks for the United States in international affairs.  This, then, is the basis for the argument the government has advanced in its briefs: “exclusive commitment of the recognition power to the Executive is necessary to ensure that the nation speaks with one voice.”  

These are diametrically opposed views. In one, the president is a mere agent, albeit one who has by necessity been given a great deal of discretion. In the second, he is sovereign.

That latter view is frightening. Congressional supremacy is the basis of our entire constitutional system, and congressional oversight our best protection against tyranny. To be sure, a powerful executive, capable of acting against sudden threats and during periods of Congressional dysfunction (like now), is essential. Someone must fill the void. But allowing presidential discretion to become presidential supremacy undermines basic principles of democracy. In a democracy, after all, it is the people that are sovereign. It would be bizarre if their representatives, tasked with confirming treaties, regulating international trade and declaring war, had to bow to the president in smaller matters of foreign policy.

On Monday, the Court will have the opportunity to finally weigh these two views of presidential power. The case could not come at a more opportune time. President Obama, especially, has pushed his independent war-making powers to (and some would say beyond) their outer limits. He has stared down Congressional hawks over Iran, and may soon try to loosen sanctions unilaterally. Congress and the courts must reassert themselves. This case, where the president is acting in defiance of explicit Congressional legislation and where his power is at its “lowest ebb,” is the ideal means to do so.