Supreme Court Update: Zivotovsky v. Kerry (13-628), Mellouli v. Lynch (13-628) and Order List

June 12, 2015 Supreme Court Update

Greetings, Court Fans!

The Court issued only one decision this week, but it was a biggie: Zivotovsky v. Kerry (13-628), aka the "Jerusalem passport case," which will surely find its way into the separation-of-powers chapter of Con Law casebooks in short order. In addition to Zivotovsky, this update will cover Mellouli v. Lynch (13-1034), on the application of the so-called "categorical approach" to drug-paraphernalia convictions in the immigration removal context. As Secretary Kerry would say, allons-y!

In Zivotovsky v. Kerry (13-628), the Court was forced to wade into a delicate issue of both foreign policy and the relationship between the political branches of Government—namely, whether Congress can force the Executive Branch, in effect, to recognize Israel's sovereignty over Jerusalem, something the Executive has long refused to do. Though President Truman formally recognized Israel as a sovereign state in 1948, the Executive Branch has always refused to recognize the sovereignty of Israel—or any other state or people for that matter—over Jerusalem. In accordance with this Executive policy, the State Department's Foreign Affairs Manual instructs its employees to record the place of birth of children born to U.S. citizens in Jerusalem as "Jerusalem" and not "Israel." In 2002, Congress enacted the Foreign Relations Authorization Act of 2003, which among other things contained § 214, entitled "United States Policy with Respect to Jerusalem as the Capital of Israel." Section 214 expressly sought to override the Foreign Affairs Manual by requiring the Secretary of State to record a Jerusalem-born child's place of birth as Israel on passports and consular reports of birth, if the child or his parents so request. Shortly after the enactment of § 214, Menachem Binyamin Zivotovsky was born in Jerusalem and his parents sought to have "Israel" listed as his place of birth on his passport. When Embassy clerks refused, pointing to the Foreign Affairs Manual, the Zivotovskys sued to enforce § 214. The District Court and the D.C. Circuit initially dismissed the case as raising a political question—i.e., whether Jerusalem is part of Israel—but the Supreme Court reversed. See Zivotovsky v. Clinton (2012). On remand, the D.C. Circuit held that § 214 was unconstitutional because it infringed on the President's exclusive power to determine whether to recognize a foreign sovereign.

This time, the Court affirmed, in a deeply fractured 5-1-3 decision. Justice Kennedy penned the majority opinion, writing for himself and the four more liberal justices. (Justice Thomas concurred in the result only.) As Kennedy indicated at the outset, the case boiled down to two questions: (1) whether the President has the exclusive power to grant formal recognition to a foreign sovereign; and (2) if so, whether § 214 infringes on that exclusive power by requiring the Secretary of State to issue formal statements contradicting the President's decision not to recognize Israel's sovereignty over Jerusalem. With respect to the first question, though the Constitution does not expressly enumerate any such recognition power, Kennedy found that the Constitution's text and structure grant the President the exclusive power to recognize foreign nations and governments. The principal textual hook for this power is found in the Reception Clause, which directs that the President "shall receive Ambassadors and other public Ministers." According to the majority, at the time of the founding, receiving an ambassador was tantamount to recognizing the sending state's sovereignty. Therefore, by according this power to the President, the Constitution gave the Executive Branch the power to recognize foreign sovereigns. But ultimately, the majority's determination that the President has the exclusive power to recognize foreign governments rested on "functional considerations." "Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not . . . Recognition is a topic on which the Nation must speak with one voice. That voice must be the President's." Turning to the second question, Kennedy reasoned that because the power to recognize foreign states resides exclusively with the President, § 214(d) violates the constitutional separation of powers because it infringes on the Executive's consistent decision to withhold recognition with respect to Jerusalem. "If the power over recognition is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent's statements."

Though the majority recognized an exclusive Executive power over recognition and struck down § 214, Kennedy's opinion went to great lengths to reach a narrow decision that does not significantly empower the President at the expense of the Congress. To begin with, by focusing on the Reception Clause, Kennedy avoided basing the Court's decision on the broader "Vesting Clause," which provides that the "executive Power," however defined, "shall be vested in the President." Kennedy also rejected the Obama administration's argument that the President has a broader exclusive power over foreign affairs generally, insisting that "[i]t is not for the President alone to determine the whole content of the Nation's foreign policy." Finally, Kennedy went on at some length (almost apologetically) to describe the important role Congress plays in foreign policy, including the regulation of passports. He insisted that the Court's decision was limited to the particular power to recognize foreign states, including their boundaries.

Pragmatism aside, as explained with gleeful precision by the dissenters (stay tuned), the majority's invocation of the Reception Clause to provide the President with the exclusive power to recognize foreign sovereigns and its view that § 214 unconstitutionally treads on this exclusive power is . . . not so persuasive. In a solo opinion concurring only in the judgment, Justice Thomas laid out an alternative path to the same result, but one that would potentially result in a vast expansion of Executive power over foreign affairs, which no other Justice was willing to endorse. Thomas agreed with the dissenters that, even if the President had exclusive power over recognizing foreign sovereigns, § 214 would not infringe that power because no act of sovereign recognition results from identifying "Israel" as the place of birth of a person born in Jerusalem. "Listing a Jerusalem-born citizen's place of birth as ‘Israel' cannot amount to recognition because the United States already recognizes Israel as an international person." Rather than adopt the majority's "novel definition of the recognition power," Thomas would have reached the same result of striking down § 214 with respect to passports through invocation of the Vesting Clause. In Thomas's view, Article II "vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President." The question therefore is whether, at the time of the Founding, the "executive Power" included power over foreign affairs. Through a typically lengthy historical exegesis, Thomas concluded that "[f]ounding-era evidence reveals that the ‘executive Power' included the foreign affairs powers of a sovereign State." Because § 214 implicates the President's residual foreign affairs power, it is unconstitutional unless it relates to one of the foreign-affairs powers specifically assigned to Congress in Article I. Through yet another historical survey, Thomas concluded that § 214 is unconstitutional with respect to passports, specifically, because the regulation of passports is a traditionally exclusive executive function; however, § 214 can "be constitutionally applied to consular reports of birth abroad because those documents do not fall within the President's foreign affairs authority but do fall within Congress' enumerated powers over naturalization." Accordingly, Justice Thomas would have held that the Zivotovskys could not invoke § 214 to force the State Department to list Israel as the place of birth on their son's passport, but they could insist that Israel be listed as his place of birth on the consular report of birth.

To the dissenters—the Chief Justice, Scalia, and Alito—the majority's decision could only be explained as results oriented because it lacked any sound basis in Constitutional text or even historical and legal precedent. The Chief, joined by Alito, penned a short dissent underscoring how unprecedented the majority's decision really was: "Never before has this Court accepted a President's direct defiance of an Act of Congress in the field of foreign affairs." Instead, in the oft-cited words of Justice Jackson in Youngstown Sheet & Tube v. Sawyer (1952), the President's power reaches "its lowest ebb" when he contravenes the express will of Congress. Roberts criticized the majority's focus on the Reception Clause as the purported source of the President's exclusive power to recognize foreign states, but concluded that it didn't ultimately make a difference in this case "because the statute at issue does not implicate recognition." Section 214 simply gives an American citizen born in Jerusalem the option to designate his place of birth as Israel "for the purposes of" passports and other documents. It is about identification, not recognition, and "the annals of diplomatic history record no examples of official recognition accomplished via optional passport designation."

Justice Scalia picked up the criticism in his principal dissent, joined by the Chief and Alito. While the question of whether the President has an exclusive recognition power is interesting (if more difficult than the majority makes it out to be), there is "no need to confront these matters today . . . because § 214(d) plainly does not concern recognition." It does not require the Secretary of State to make a formal declaration about Israel's sovereignty over Jerusalem and there is no custom of international law that infers acceptance of sovereignty from the birthplace designation on a passport. Indeed, Scalia noted, though the Executive officially does not take a position on China's claim of sovereignty over Taiwan, the State Department nevertheless records the birthplace of U.S. citizens born in Taiwan as "China," and heretofore there has been no suggestion that the Government is speaking out of both sides of its mouth on the issue of China's sovereignty over the region. As in the case of Taiwan, § 214 merely requires a particular "geographic description," not a recognition of sovereignty, and, by its own terms, it does so "for purposes of the registration of birth, certification of nationality, or issuance of a passport" only. "Finding recognition in this provision is rather like finding admission to the Union in a provision that treats American Samoa as a State for purpose of a federal highway safety program."

While the dissenters agreed with Justice Thomas that the majority's reasoning was shaky, they were perhaps even more disturbed by Thomas's reasoning. "Whereas the Court's analysis threatens Congressional power over foreign affairs with gradual erosion, the concurrence's approach shatters it in one stroke." In their view, the Necessary and Proper Clause allows Congress to regulate passports in order to effectuate a host of enumerated powers, in particular its power over naturalization. And, to the extent there is conflict between the political branches' shared powers in this area, it is the Executive Branch that must cede. "The combination of (a) the concurrence's assertion of broad, unenumerated ‘residual powers' in the President, (b) its parsimonious interpretation of Congress's enumerated powers, and (c) its even more parsimonious interpretation of Congress's authority to enact laws ‘necessary and proper for carrying into Execution' the President's executive powers, produces (d) a presidency more reminiscent of George III than George Washington."

So, after 93 pages, three distinct viewpoints emerge in Zivotovsky: the dissenters' full-throated defense of Congress's shared power over foreign affairs, Justice Thomas's equally rigorous promotion of an expansive Executive foreign-affairs power, and the majority's "functional" approach, which, while less grounded in Constitutional text or history, has the advantage of not upsetting the balance of power between the branches too much, while also not causing riots in the Middle East.

Moving on to a slightly less contested area of foreign relations, in Mellouli v. Lynch, (13-1034), the Court considered how the categorical approach to state-law convictions should apply to drug-paraphernalia offenses in the context of the Immigration and Nationality Act's provision authorizing removal of an alien convicted of an offense "relating to a controlled substance (as defined in Section 802 of Title 21)."

Moones Mellouli, a lawful permanent resident, was arrested in 2010 for driving under the influence. When he was searched at a Kansas detention facility, deputies discovered four orange tablets hidden in his sock, which he admitted were Adderall, a substance controlled under both federal and Kansas law. He was later charged with and pled guilty to the misdemeanor offense of possessing drug paraphernalia. The Kansas statute in question prohibits possessing with intent to use "any drug paraphernalia to . . . store [or] conceal . . . a controlled substance," which he satisfied by using his sock to conceal and store the pills. The charging document did not identify what controlled substance the pills contained, however. After Mellouli completed a term of probation, Immigration and Customs Enforcement officers arrested him and commenced removal proceedings under 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes removal of an alien "convicted of a violation of . . . any law or regulation of a State, the United States or a foreign country relating to a controlled substance (as defined in Section 802 of Title 21)." Section 802, in turn, defines "controlled substance" as a drug or other substance listed on one of five federal schedules. Importantly, Kansas's definition of "controlled substance" is not based on the federal schedules and includes a handful of substances not on the federal lists. Given this different definition, Mellouli theoretically could have pled guilty to possessing drug paraphernalia in order to conceal a substance controlled under Kansas law but not under federal law. Nevertheless, Mellouli was ordered removed and the Eighth Circuit affirmed.

The Court reversed, 7-2, in an opinion authored by Justice Ginsburg. The majority began by discussing the so-called categorical approach, which has a "long pedigree" in U.S. immigration law. Under that approach, a state conviction triggers removal only if the underlying crime by definition falls within a category of removable offenses defined by federal law. Immigration judges therefore do not need to (and indeed are not permitted to) inquire into the specific facts of a conviction but should only focus on the legal question of what the state-law conviction's elements necessarily established. The Board of Immigration Appeals ("BIA") has long used this approach for state possession or distribution offenses under § 1227(a)(2)(B)(i), meaning that an alien is not removable for a state-law conviction of possessing a controlled substance if the law's definition of "controlled substance" includes substances not included in the federal schedules. But the BIA and the Eighth Circuit used a different approach to drug-paraphernalia offenses, concluding that a paraphernalia conviction "relates to" any and all controlled substances, whether federally listed or not, with which the paraphernalia can be used. Mellouli's conviction therefore "relat[ed] to" a federally controlled substance, because his sock could be used to store or conceal a federally controlled substance, even if the conviction could have been based on his using the sock to store or conceal a non-federally controlled substance. The Court found this rationale illogical, and therefore not entitled to Chevron deference, because it would punish less-serious paraphernalia offenses more harshly than more-serious drug possession or distribution offenses. The Court also rejected the Eighth Circuit's additional rationale that a conviction "relat[es] to" a federally controlled substance so long as there is substantial overlap between the drugs controlled under federal and state law (as there was in this case). While the Court acknowledged that § 1227(a)(2)(B)(i) permits removal of those convicted of an offense "relating to" a federally controlled substance—which is a more flexible standard than would be achieved by "involving" or similar language—the Court nonetheless found this interpretation too broad. After all, how much overlap would be enough? Moreover, this interpretation did nothing to ameliorate the disparate treatment of paraphernalia offenses relative to possession or distribution offenses. In sum, § 1227(a)(2)(B)(i) only authorizes removal if a drug defined in § 802 is an element of the alien's offense of conviction.

Justice Thomas, joined by Justice Alito, dissented. As noted, § 1227(a)(2)(B)(i) only requires that the alien be convicted of an offense "relating to" a federally controlled substance. A law can "relate to" a federally controlled substance even if it also controls other substances: "relate" is a broad word, and Congress's intent that it apply broadly can be inferred from Congress's use of more restrictive words in other removal statutes. While Justice Thomas did not squarely address just how much overlap between the federal and state definitions of controlled substances was required for a law to "relate to" a federally controlled substance, he found the ninety-seven percent overlap in this case more than adequate to qualify for removal.

Although the Court handed down only one case Monday—leaving (gasp) twenty more to come over the next two weeks—it was active on the certiorari front, granting cert in three new cases and denying in one over a written dissent. The Court granted cert in:

Tyson Foods v. Bouaphakeo (14-1146), which asks whether a class action may be certified where (1) liability and damages will be determined with statistical techniques that ignore differences among class members and instead presume all members are identical to the average observed in a sample; and (2) when the class contains hundreds of members who were not in fact injured.

Luis v. United States (14-419), which asks whether the pretrial restraint of a criminal defendant's untainted assets (i.e. those not traceable to a criminal offense) violates the Fifth and Sixth Amendment when those assets are needed to retain the defendant's counsel of choice.

Shapiro v. Mack (14-990), which asks whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, meaning the empaneling of a three-judge court is not required, not because it deems the complaint to be frivolous but because it concludes that the complaint fails to state a claim under Fed. R. Civ. P. 12(b)(6).

Meanwhile, the Court denied cert in Johnson v. San Francisco, a closely watched case involving a local ordinance that requires residents to lock up guns kept within their homes when not in use. Though no circuit split on the issue has emerged, Justice Thomas, joined by Scalia dissented from the denial, lamenting that the majority appeared to be allowing lower courts to dismantle the Court's decision in District of Columbia v. Heller (2008), recognizing an individual right to bear arms. In view of the fact that the Court has recently granted cert on a number of "splitless" issues involving other constitutional rights, Thomas believed the Court was giving short shrift to the Second Amendment.

That will do it for this week, but you can expect to be seeing us in your in-box frequently from here on out.