{"id":2759,"date":"2011-11-08T21:01:07","date_gmt":"2011-11-09T02:01:07","guid":{"rendered":"http:\/\/harvardnsj.com\/?p=2759"},"modified":"2013-02-15T17:27:21","modified_gmt":"2013-02-15T22:27:21","slug":"a-historical-gloss-on-the-vesting-power","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2011\/11\/a-historical-gloss-on-the-vesting-power\/","title":{"rendered":"A “Historical Gloss on the Vesting Power?”"},"content":{"rendered":"

By Prof. Michael Glennon —<\/strong><\/p>\n

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<\/em><\/a>, the Obama Administration appeared to give an answer: yes. (For a good summary see the Washington Post<\/em>\u2019s account<\/a>.)<\/p>\n

At issue was a statute requiring the State Department \u201cto record the place of birth as Israel\u201d in the passport of any child born in Jerusalem, if the child\u2019s 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\u2019s 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:<\/p>\n

JUSTICE KAGAN: Suppose, General Verrilli, suppose that this statute, there was a\u2015the 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.”<\/p>\n

Would that be constitutional?<\/p>\n

GEN. VERRILLI: I don’t think it would change the analysis, Justice Kagan.<\/p>\n

I\u2015I think\u2015of 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\u2015<\/p>\n

JUSTICE KAGAN: No, my statute has a title which says “Identification of Persons Born in Jerusalem.”<\/p>\n

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\u2015of, an incident of recognition, is a judgment that the Executive makes.<\/p>\n

Justice Kagan later returned to the issue for clarification:<\/p>\n

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.<\/p>\n

GEN. VERRILLI: So\u2015here’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\u2026.<\/p>\n

And I would say in addition\u2015I would say in addition, to the extent that there is a question, we do think, as I think we indicated in our brief, that\u2015that 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\u2015but we think this responsibility is exclusive\u2015<\/p>\n

JUSTICE KAGAN: So if that provision were not in the Constitution, would you be making the same argument you are now?<\/p>\n

GEN. VERRILLI: If the reception clause were not in the Constitution\u2015but 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.<\/p>\n

\u00a0Chief Justice Roberts, as the argument drew to a close, also picked up the point:<\/p>\n

CHIEF JUSTICE ROBERTS: You told\u2015you told Justice Kagan it didn’t\u2015your 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.<\/p>\n

GEN. VERRILLI: But I\u2015I didn’t mean that it wouldn’t be a textual commitment. It would be\u2015it would be a commitment that one would read as the historical gloss on the vesting power, which is what\u2015Garamendi said.<\/p>\n

CHIEF JUSTICE ROBERTS: That sounds to me like not in the text.<\/p>\n

\u00a0American Insurance Association v. Garamendi<\/em>, 539 U.S. 396 (2003), to be clear, had nothing to do with separation-of-powers constraints. The case involved a federalism issue\u2015the validity of a California statute that the Court found to interfere with the federal government\u2019s conduct of foreign relations. The authority of Congress to enact such a statute\u2015or of the Executive to ignore it\u2015was not at issue in Garamendi<\/em>. The Supreme Court, indeed, has never invalidated an act of Congress based upon a \u201chistorical gloss on the vesting power.\u201d<\/p>\n

This case is not the place to begin. A \u201chistorical gloss on the vesting power\u201d is a formula for presidential power that has no beginning and no end\u2015not a description of executive authority in a modern, politically accountable constitutional democracy.<\/p>\n

Image courtesy of <\/em>Britannica.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s account.) At issue was a statute requiring the State Department \u201cto record the place of birth as Israel\u201d in the passport of any child born in Jerusalem, if the child\u2019s parents so request. 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