Today there’s some interesting news from the realm of foreign relations law: Israeli Prime Minister Benjamin Netanyahu will give an address to Congress next month on the topic of Iran’s nuclear program, presumably to encourage legislators to support a hardline stance and perhaps to undermine the President’s ongoing efforts to achieve a diplomatic solution. To me, the noteworthy part is not so much the address itself, but rather the process by which it was arranged: the White House had no role. In fact, the Administration didn’t even know about it until today. John Boehner says that he invited Netanyahu without consulting officials from the executive branch because “Congress can make [such a] decision on its own.” The President’s Press Secretary responded that it was a breach of protocol for Netanyahu to plan a visit without first contacting the White House.
A couple of quick points. First, addresses of this type have a long historical pedigree. Consider these facts from the Office of the Historian of the House of Representatives, which has a fun website on the subject: Continue reading “Some Historical Perspective on Netanyahu’s Address to Congress”
To the parties and lower courts, Zivotofsky v. Kerry has been a dispute primarily about the nature of the President’s power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II?
In a new essay in the NYU Journal of Law & Liberty, I discuss the possibility that Section 214(d) of the Foreign Relations Authorization Act of 2003 is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and recognition is beside the point. The essay is available here.
Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, the case concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. After signing the bill into law, President Bush declined to honor its terms, and President Obama has done likewise. Both have argued that the passport requirement impermissibly interferes with the President’s recognition power because it contradicts a longstanding U.S. policy not to acknowledge the sovereignty of any state over Jerusalem. The Zivotofskys appear to agree that honoring the requirement would amount to U.S. recognition of an Israeli state that includes Jerusalem, but contend that the statute is constitutional and binding on the President because Congress shares in the recognition power. Oral argument is scheduled for the fall. If you’re interested, I wrote a brief analysis of the case over at the international law blog Opinio Juris. You can read it here.