Page:Zivotofsky v. Kerry.pdf/10

10

In considering claims of Presidential power this Court refers to Justice Jackson's familiar tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635–638 (1952) (concurring opinion). The framework divides exercises of Presidential power into three categories: First, when “the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id., at 635. Second, “in absence of either a congressional grant or denial of authority” there is a “zone of twilight in which he and Congress may have concurrent authority,” and where “congressional inertia, indifference or quiescence may” invite the exercise of executive power. Id., at 637. Finally, when “the President takes measures incompatible with the expressed or implied will of Congress. . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Ibid. To succeed in this third category, the President's asserted power must be both “exclusive” and “conclusive” on the issue. Id., at 637–638.

In this case the Secretary contends that § 214(d) infringes on the President's exclusive recognition power by “requiring the President to contradict his recognition position regarding Jerusalem in official communications with foreign sovereigns.” Brief for Respondent 48. In so doing the Secretary acknowledges the President's power is “at its lowest ebb.” Youngstown, 343 U. S., at 637. Because the President's refusal to implement § 214(d) falls into Justice Jackson's third category, his claim must be “scrutinized with caution,” and he may rely solely on powers the Constitution grants to him alone. Id., at 638.

To determine whether the President possesses the exclusive power of recognition the Court examines the Constitution's text and structure, as well as precedent and history bearing on the question.