Page:Zivotofsky v. Kerry.pdf/77

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Recognition is a type of legal act, not a type of statement. It is a leap worthy of the Mad Hatter to go from exclusive authority over making legal commitments about sovereignty to exclusive authority over making statements or issuing documents about national borders. The Court may as well jump from power over issuing declaratory judgments to a monopoly on writing law-review articles.

No consistent or coherent theory supports the Court's decision. At times, the Court seems concerned with the possibility of congressional interference with the President's ability to extend or withhold legal recognition. The Court concedes, as it must, that the notation required by § 214(d) “would not itself constitute a formal act of recognition.” Ante, at 30. It still frets, however, that Congress could try to regulate the President's “statements” in a way that “override[s] the President's recognition determination.” Ante, at 29. But “[t]he circumstance, that. . . [a] power may be abused, is no answer. All powers may be abused.” 2 J. Story, Commentaries on the Constitution of the United States § 921, p. 386 (1833). What matters is whether this law interferes with the President's ability to withhold recognition. It would be comical to claim that it does. The Court identifies no reason to believe that the United Statesor indeed any other countryuses the place-of-birth field in passports and birth reports as a forum for performing the act of recognition. That is why nobody thinks the United States withdraws recognition from Canada when it accommodates a Quebec nationalist's request to have his birthplace recorded as “Montreal.”

To the extent doubts linger about whether the United States recognizes Israel's sovereignty over Jerusalem, § 214(d) leaves the President free to dispel them by issuing a disclaimer of intent to recognize. A disclaimer always suffices to prevent an act from effecting recognition. Restatement (Second) of Foreign Relations Law of the United States § 104(1) (1962). Recall that an earlier law grants citizens born in Taiwan the right to have their birthplaces recorded