Read with this part: the note on Zivotofsky v. Kerry on the Module 6 page.
The case
Congress passed a statute, § 214(d), that let an American citizen born in Jerusalem have “Israel” recorded as the place of birth on a passport. Since 1948 every President had declined to recognize any country’s sovereignty over Jerusalem, and the Secretary of State refused to follow the statute.
This is Jackson’s third category on its own terms: the President acting against an express Act of Congress. The President won. The Court held § 214(d) unconstitutional.
Why the President won
The power to recognize foreign governments belongs to the President alone, and Congress cannot order him to contradict it:
“judicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate … Congress cannot require him to contradict his own statement regarding a determination of formal recognition.” 135 S. Ct. at 2090 (slip op., at 19).
The key word is exclusive. In the third category the President wins only if the power is his alone, so that Congress had no power to act on the subject in the first place. The Court found that recognition is such a power. That is a narrow answer, and the Court kept it narrow.
What it did to Curtiss-Wright
The Secretary of State relied on the “sole organ” passage from Part 1. The Court refused it:
“This Court declines to acknowledge that unbounded power.” 135 S. Ct. at 2089 (slip op., at 17).
And it explained what the passage had always been:
“This description of the President’s exclusive power was not necessary to the holding of Curtiss-Wright — which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination. Indeed, Curtiss-Wright did not hold that the President is free from Congress’ lawmaking power in the field of international relations. … But whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.” Id. at 2090 (slip op., at 18).
Say exactly what happened. Curtiss-Wright was not overruled. Its holding about delegation still stands. What the Court took away was the use Presidents had made of its dictum for nearly eighty years. On the same page the Court added: “It is not for the President alone to determine the whole content of the Nation’s foreign policy.”
The dissent
Chief Justice Roberts, dissenting, named what was new: “Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” (Slip op., at 1.)
What to carry out of Part 3
- The holding: the recognition power is the President’s alone, so a statute that forces him to contradict a recognition decision is unconstitutional.
- The method: in Jackson’s third category, the President wins only with a power that is exclusive.
- The demotion: the “sole organ” passage is dictum about who speaks for the nation. It does not give the President an unbounded foreign-affairs power.
Check yourself
In Youngstown, the President acted against the will of Congress and lost. In Zivotofsky, he acted against an express statute and won. What is the difference?
Answer
Exclusivity. In the third category the President "can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject." Youngstown, 343 U.S. at 637–638 (Jackson, J., concurring). So he wins only if Congress had no power over the subject at all. Seizing the steel mills was not an exclusive presidential power; Congress could legislate on labor disputes and production, and had. Recognizing a foreign government is, on the Court's reading, the President's alone, so Congress's statute could not bind him.