Thursday, June 11, 2015

Roberts' rumbles re Zivotofsky; and, written constitution for Israel?

     As noted recently, one is pleased that the Court has respected common sense in Zivotofsky. Lots of people have spilled lots of ink since the decision, so this post'll just largely focus on the Chief Justice's words. And later, a note about Israel's lack of written constitution.

     The Chief Justice seems to be borderline-irritated by the Government's arguments in Ziv. As noted in our previous post, Ceci n’est pas une décision de reconnaissance”? or, Zivotofsky’s passport to postmodernism via Plessy and Palestine,
[A]fter Solicitor General Verrilli said that when Congress passed it, Section 214(d) caused trouble and distress among the Palestinians, Chief Justice Roberts fascinatingly opined,

          But that’s partly because the Executive Branch made such a big deal out of it. I mean, they issue a statement saying, this is unconstitutional and all that. They could easily have said, this is no big deal, they’re just letting whoever is born there pick the name they want to put on . . . nothing to see here, move on, and we’re proving that by going ahead and signing it. And over the intervening course, the executive has litigated this. It’s a self-fulfilling prophecy that it’s going to be such a huge deal.

But, epistemologically speaking: how does he know this . . . ? Does the Court have its own secret diplomatic corps? (“The Supreme Corps”?) Is the Court really supposed to be sua sponte conjecturing (“fact-finding sans citation”) about foreign affairs . . . ?
     True to that form, Roberts' dissent (joined by Alito) seemed none too pleased. He even used lots of italics. E.g., he says, the Reception Clause, "framed as an obligation rather than an authorization, appears alongside the duties imposed on the President by Article II, Section 3, not the powers granted to him by Article II, Section 2."
     But as the present author's brief in Ziv has noted, the division between "powers" and "duties" may not be that strictly demarcated. E.g., there is the presidential power of adjourning Congress, Article II sec. 3 cl. 3, and the duty-which-is-also-a-power, “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient,” id. at cls. 1-2 (“State of the Union” and “Recommendation” clauses).

     Roberts' opening paragraph wasn't too happy either, including, "Today's decision is a first: Never before has this Court accepted a President's direct defiance of an Act of Congress in the field of foreign affairs." But this begs the question, by accepting that the President has to "defy" Congress to exert her or his own powers in the first place. The Constitution is above either President or Congress; and it assigns Congress basically some limited, enumerated powers, as Thomas' concurrence/dissent, crackling in antagonistic dialogue versus the Scalia dissent, helpfully notes. Pace Roberts, it is Congress defying the President (and world opinion) about Israel/Jerusalem, that was the problem, that the majority opinion has now cured.

     Roberts gets back into "mega-italics" mode later on: "But even if the President does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition." And, "...the majority worries that there may be a perceived contradiction based on a mistaken understanding" of the statute, so that the majority is caving in to a "heckler's veto". But this gets into the Plessy v. Ferguson territory discussed in the present author's previous article, i.e., "Being deprived of Jerusalem is not insulting, it's just how those Palestinians choose to perceive it." Ouch. It may be a good thing that Roberts isn't Secretary of State.

     Finally, Roberts brings up Medellín v. Texas, 552 U.S. 491 (2008), saying that if the Executive can't "countermand a State's lawful action, [he can't] disregard an express statutory directive enacted by Congress, which--unlike the States--has extensive foreign relations powers of its own." The problem with this, is that, as the present author's brief notes, the execution of a Mexican national in this country, per Medellín, is a domestic matter compared to the foreign arena where the recognition issue of Menachem Zivotofsky's passport would be felt.
     All in all, not the greatest words that the Chief Justice has ever penned.

     --As for our second matter: since we're talking about constitutions and Israel, one notes that Israel itself was apparently supposed to have a constitution back in 1948. But it never happened.
     Having one would not guarantee paradise, but it might be a step forward. It would even help Israel avoid Zivotofsky-style problems itself, because, "Since Israel lacks a written constitution, the separation of powers between the three branches of government was never clearly delineated."

     The 800th anniversary of the Magna Carta is coming up in a few days, too, so, After 800 years, Britain finally asks: Do we need a written constitution?. That article notes that "a codified constitution . . . . if enacted, would remove Britain from a small, constitutionally starved club that includes New Zealand and Israel." Starvation is not always a good thing, so if the countries just mentioned got a written constitution, no more starvation.
     And if they're very lucky, they can ask John Roberts to come along and help them interpret it...............

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