Executive Power

Final Note on Zivotofsky

By Jack Goldsmith
Sunday, November 2, 2014, 6:30 AM

A quick response to Marty Lederman’s latest post on Zivotosfsky.  I confess that I do not fully understand either Marty’s or the SG’s (pp. 46-48) argument about the relevance of Article I.  They both seem to want to argue that Congress is not exercising legitimate power in the Jerusalem Passport legislation, but – perhaps to avoid a ruling under the foreign Commerce Clause that would narrow federal power generally (including vis a vis the States) – they fudge the relationship between Congress’s lack of power and the President’s exclusive power.  My claim is cleaner: Before one considers whether the President’s recognition power is exclusive, or the scope of such power, the statute is invalid because it does not regulate foreign commerce.  Marty suggests that this might be wrong because “[i]n a long line of cases–running from at least Champion v. Ames (1901) through Darby Lumber (1941), through Heart of Atlanta (1964)–the Court has held that so long as Congress is directly regulating interstate or foreign commerce itself, it does not matter if Congress’s primary or exclusive objective is one unrelated to commerce as such.”  I never said anything about Congress’s primary or exclusive objective, so that part of his response is not relevant, I think.  But the instrumentality cases are an interesting touchstone for showing what is so odd, and problematic, about the Passport legislation.  I think that in these and other commerce instrumentality cases, the Court maintains that regulating the instrumentality either promotes commerce or concerns the regulation of dangerous/immoral activities in commerce.  (On the first point, see, e.g., Heart of Atlanta: “the facilities and instrumentalities used to carry on this commerce, such as railroads, truck lines ships, rivers, and even highways, are also subject to congressional regulation so far as is necessary to keep interstate traffic upon fair and equal terms.”)   But as best I can tell, the Passport legislation is neither of these things.  I don’t think that the requirement to designate "Israel" (as opposed to “Jerusalem”) on the birthplace line in an American passport has any impact on commercial activities (e.g. travel, customs, tariffs, etc.).  And Congress is not regulating dangerous or immoral activity.  The Passport law does none of these things because the requirement to designate "Israel” is a symbolic declaratory act, not a regulation of commerce.  And that, I think, is why it should be declared invalid.

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