Features, Online — November 8, 2011 at 9:01 pm

A “Historical Gloss on the Vesting Power?”

By Prof. Michael Glennon —

Can the President, based upon no textually committed constitutional power but only upon inherent or implied power, disregard an act of Congress because that law concerns the conduct of U.S. foreign relations? On November 7, before the United States Supreme Court, in Zivotofsky v. Clinton, the Obama Administration appeared to give an answer: yes. (For a good summary see the Washington Post’s account.)

At issue was a statute requiring the State Department “to record the place of birth as Israel” in the passport of any child born in Jerusalem, if the child’s parents so request. The Administration believes that whether Jerusalem is part of Israel is for the Executive to determine, not Congress. The Administration had originally appeared to rest that argument upon the Executive’s recognition power. In oral argument, however, the Administration (Donald Verrilli, the Solicitor General) asserted a much broader theory of presidential power when pressed by Justice Kagan:

JUSTICE KAGAN: Suppose, General Verrilli, suppose that this statute, there was a―the section that’s there now and then there was another section, and the section said: “The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel’s sovereignty over Jerusalem.”

Would that be constitutional?

GEN. VERRILLI: I don’t think it would change the analysis, Justice Kagan.

I―I think―of course, that is not this statute, which has a title which says “United States policy with respect to Jerusalem as the capital of Israel.” But―

JUSTICE KAGAN: No, my statute has a title which says “Identification of Persons Born in Jerusalem.”

GEN. VERRILLI: I still think that would be within the scope of the Executive’s power to decide because the content of the passport insofar as the Executive believes that it constitutes an expression of―of, an incident of recognition, is a judgment that the Executive makes.

Justice Kagan later returned to the issue for clarification:

JUSTICE KAGAN: General Verrilli, is the textural basis for your argument that the President has exclusive power here? Is it the receipt of ambassadors clause alone, or is it something else? Because I was frankly a little bit surprised that your brief put so much weight on that receipt of ambassadors clause, which arguably was meant to give the President a purely ministerial function. And so literally, on any other power that the President has.

GEN. VERRILLI: So―here’s our position on that, Justice Kagan. We do think that the reception clause is the source of the recognition power. Hamilton identified it as the source of the recognition power in the Washington administration. I think it’s now understood that it’s hornbook law that that’s the textual source….

And I would say in addition―I would say in addition, to the extent that there is a question, we do think, as I think we indicated in our brief, that―that one can see this power as part of what the Court in Garamendi described as the vast share of responsibility that the Constitution assigns to the Executive. Now, we don’t think all of that shared responsibility is exclusive to the Executive―but we think this responsibility is exclusive―

JUSTICE KAGAN: So if that provision were not in the Constitution, would you be making the same argument you are now?

GEN. VERRILLI: If the reception clause were not in the Constitution―but we had the same history that we have now and the same functional considerations about the need for it being in the control of the executive, yes, we would.

 Chief Justice Roberts, as the argument drew to a close, also picked up the point:

CHIEF JUSTICE ROBERTS: You told―you told Justice Kagan it didn’t―your position didn’t depend upon a textual commitment, that your position would be the same if the receive ambassadors clause were not in the Constitution.

GEN. VERRILLI: But I―I didn’t mean that it wouldn’t be a textual commitment. It would be―it would be a commitment that one would read as the historical gloss on the vesting power, which is what―Garamendi said.

CHIEF JUSTICE ROBERTS: That sounds to me like not in the text.

 American Insurance Association v. Garamendi, 539 U.S. 396 (2003), to be clear, had nothing to do with separation-of-powers constraints. The case involved a federalism issue―the validity of a California statute that the Court found to interfere with the federal government’s conduct of foreign relations. The authority of Congress to enact such a statute―or of the Executive to ignore it―was not at issue in Garamendi. The Supreme Court, indeed, has never invalidated an act of Congress based upon a “historical gloss on the vesting power.”

This case is not the place to begin. A “historical gloss on the vesting power” is a formula for presidential power that has no beginning and no end―not a description of executive authority in a modern, politically accountable constitutional democracy.

Image courtesy of Britannica.

One Comment

  1. I can hear the SG stammer and flail.

    I had to compliment your Iran plot post. Good stuff. Just remember that government incompetence should always be the first choice to solve a “why” question. What is bad is that once the plot was revealed, neither Obama nor his advisors knew enough to say nothing. Ongoing prosecution and such. This makes two cases with Bradley Manning. A disappointing trend.

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