Page:Zivotofsky v. Kerry.pdf/76

76

country under the established principles of international law” and that “Tibet's true representatives are the Dalai Lama and the Tibetan Government in exile.” § 355, 105 Stat. 713 (1991). After Texas won independence from Mexico, the Senate resolved that “the State of Texas having established and maintained an independent Government,. . . it is expedient and proper. . . that the independent political existence of the said State be acknowledged by the Government of the United States.” Cong. Globe, 24th Cong., 2d Sess., 83 (1837); see id., at 270.

In the final analysis, the Constitution may well deny Congress power to recognize—the power to make an international commitment accepting a foreign entity as a state, a regime as its government, a place as a part of its territory, and so on. But whatever else § 214(d) may do, it plainly does not make (or require the President to make) a commitment accepting Israel's sovereignty over Jerusalem.

The Court does not try to argue that § 214(d) extends recognition; nor does it try to argue that the President holds the exclusive power to make all nonrecognition decisions relating to the status of Jerusalem. As just shown, these arguments would be impossible to make with a straight face.

The Court instead announces a rule that is blatantly gerrymandered to the facts of this case. It concludes that, in addition to the exclusive power to make the “formal recognition determination,” the President holds an ancillary exclusive power “to control. . . formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds.” Ante, at 32. It follows, the Court explains, that Congress may not “requir[e] the President to contradict an earlier recognition determination in an official document issued by the Executive Branch.” Ibid. So requiring imports from Jerusalem to be taxed like goods from Israel is fine, but requiring Customs to issue an official invoice to that effect is not? Nonsense.