One of the basic lessons that law students learn in law school is the importance of “framing” an issue. The “legally correct” result of a case often depends on how the issue is framed.
This past week, the United States Supreme Court decided Zivotsky v. Kerry, a case involving the constitutionality of a 2002 statute requiring the State Department to designate that a person born in Jerusalem as being born in Israel in passports and consular report if that person requested. In a 5-1-3 decision, the Supreme Court struck down this statute. (The 1 was Justice Thomas who would have struck down the statute with regards to the passport requirement but left it in place for the consular report).
For Justice Kennedy’s majority opinion, this case was simply about the power to recognize a country, a power that Justice Kennedy placed with the executive. While finding that the president had exclusive power over the recognition power, Justice Kennedy did recognize that Congress had some authority to regulate foreign affairs (e.g. ratifying treaties, passing statutes to implement treaties, confirming ambassadors). Justice Thomas agreed that the passport requirement was about recognition, but saw the consular report as dealing with immigration and naturalization (a power allocated to Congress). The three dissenters (Chief Justice Roberts, Justice Scalia, and Justice Alito) made some arguments against an exclusive recognition power (relying primarily on the weak example of Congress granting the Philippines independence), but also rejected the framing of this case as being just about the recognition power.
Reviewing the opinions, the amazing thing was the three dissenters. One has to ask how these three justices would have resolved this issue if it involved a Republican President instead of a Democratic President as they have normally written opinions expressing an expansive view of presidential powers.
Starting this week, the Supreme Court will go to multiple opinion days per week until it gets the last twenty cases for the term done. As some of the other key “political” cases get decided, I’ll be back with additional commentary.
