I was a guest Tuesday morning on The Tony Katz Show on WICB Indianapolis.
The topic was the Zivotofsky case discussed earlier this week, Supreme Court Overturns Congress on Jerusalem Passport Law. I made the point that while the majority decision purported to make the decision very narrow, it’s likely that the decision would be used to try to limit Congressional legislation more broadly as relates to foreign policy:
Professor Eugene Kontorovich expresses a similar view, writing at ScotusBlog (via Volokh Conspiracy):
[T]he opinion may actually be broader than it seems, because applying even an exclusive recognition power to the facts of the case would not obviously result in a win for the president. The case goes beyond recognition in two ways. First, it does not involve the traditional forms of recognition – countries and governments. Rather, it relates to the geographic scope of countries. Second, the challenged action – the passport law – was not an act of recognition, as the Court concedes.***Say Congress passes a set of tariffs, or immigration quotas, for India, and specifies that by this they mean Kashmir also. Can the president refuse to apply them to Kashmir? Or to turn it around, could the president apply Pakistani tariffs and immigration quotas to Kashmir when Congress says to apply Indian ones, on the grounds that it interferes with his power of recognition?These are not far-fetched examples. Assume Congress wants to make a law relating to Israel – immigration quotas, or customs duties. That law now would presumably not apply to Jerusalem, a fairly striking development. The president’s power to avoid laws through (non)recognition becomes even greater when, as with Israel, he can selectively recognize – that is, treat the territory as part of a country for some purposes, but not for others.Indeed, in the short term, the decision may give support to legislative efforts to use language such as “Israel and the territories under its jurisdiction” in trade and other legislation relating to Israel. Some might fear this blurs the distinction between Israel and the West Bank, but such blurring is already inherent in the Jerusalem policy. Such legislation becomes necessary for Congress to accomplish and implement legislative trade policy.
At the end of the day, the political answer is to change Executive Branch policy on Jerusalem.
But more broadly, the decision came at a time of increased Congressional activism trying to reign in the Obama administration. Expect the Zivotovsky case to be used by the administration to push back against Congress, even if there is no justification in doing so.
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