In it, but not of it. TPM DC
The case, Zivotofsky v. Kerry, was brought by Menachem Binyamin Zivotofsky, an American citizen born in Jerusalem in 2002, whose parents sought to list Israel as his place of birth on his passport. They argued that the 2002 statute, passed shortly before Zivotofsky's birth as part of an appropriations package, gave them the right to do so and Congress had authority in this matter. President George W. Bush had decried the provision even as he signed the larger law.
The question before the court, Kennedy said, was not just whether the president had the authority to recognize or not recognize a foreign government, but had the "exclusive" authority to do so.
"The President is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition," Kennedy wrote. The decision, he said, stopped short of defining "broader" executive powers over foreign relations. But, Kennedy said, "Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear. Congress cannot require him to contradict his own statement regarding a determination of formal recognition."
Monday's decision came after the Supreme Court had previously remanded the case back to a lower court on a preliminary issue in 2012, having determined the question was an appropriate one for the judicial branch. In 2013, an appeals court panels ruled in favor of the White House.
Scalia and Roberts both offered dissenting opinions Monday. Roberts said that "although the President has authority over recognition, I am not convinced that the Constitution provides the 'conclusive and preclusive' power required to justify defiance of an express legislative mandate." Scalia argued that it "is a leap worthy of the Mad Hatter" to argue that the executive branch's authority to make legal commitments to foreign nations also gives it the exclusive authority to make statements about national borders.
Scalia also took a swipe at Justice Clarence Thomas's partial concurrence- partial dissent, which argued that that congressional statute did not apply to passport regulation, but is applicable to other matters, such as consular reports of birth.
Scalia said, "Whereas the Court’s analysis threatens congressional power over foreign affairs with gradual erosion, the concurrence’s approach shatters it in one stroke."