Scalia's Originalist Sin in Passport Case

      The Supreme Court got it right when it struck down a law that Congress passed, in contradiction of U.S. foreign policy, allowing U.S. citizens born in Jerusalem to list Israel as their birthplace on passports. But the court reached the right result in a diplomatically delicate case despite the sharp disagreement between the two originalist justices, Antonin Scalia and Clarence Thomas, about the original meaning of the Constitution on the issue.
      As constitutional cases go, this question looks pretty easy: Does the president have the power of diplomatic recognition of foreign governments, exclusive of Congress or the courts? Compare that issue to cases that call on the justices to define elastic terms such as “due process” or “unreasonable search and seizure” or to engage in difficult line-drawing under the Equal Protection Clause.
      On this simple case, however, Scalia and Thomas reached totally opposite conclusions. The disagreement proves — if proof were needed — that originalism is not a totally objective quasi-scientific method as its advocates like to suggest. And Scalia’s stance has the appearance of a politically motivated inconsistency. He voted, along with two Republican-appointed conservatives, to trim presidential power with a Democrat in the White House and to enlarge the power of what is now a meddlesome, Republican-controlled Congress.
      The power of diplomatic recognition stems from the so-called Reception Clause in Article II, which states that the president “shall receive ambassadors and other public ministers.” Congress gets no directly corresponding power in Article I. True, Congress has, among others, powers “to regulate commerce with foreign nations” and “to establish an uniform rule of naturalization.” And, as always, Congress can wield the power of the purse to influence or condition a president’s decisions on foreign policy.
      A Supreme Court majority consisting of Justice Anthony M. Kennedy and the four liberals acknowledged those congressional powers but found no textual basis for interfering with the president’s “exclusive” power of diplomatic recognition. “The formal act of recognition is an executive power that Congress may not qualify,” Kennedy wrote. The president cannot be effective in diplomatic negotiations over recognition, Kennedy reasoned, unless it is “evident . . . that he speaks for the Nation on that precise question.”
      Kennedy found the president’s power supported by judicial precedent and historical practice despite ambiguities that had accumulated over more than 200 years. The court’s opinions affirm the president’s power, Kennedy said, despite some stray remarks in a couple of decisions.
      In practice, Congress and the president have sometimes engaged with each other on diplomatic recognition issues. Most recently, Congress passed a law treating Taiwan as a distinct entity even as President Carter withdrew recognition and recognized the mainland government instead. But Kennedy said the history shows that presidents sometimes choose to cooperate with Congress, not that Congress has any power to contradict the president on recognition issues.
      What does the Great Originalist make of all this? Scalia throws up his hands. The Constitution gives the president the power of diplomatic recognition, he says, “but I find it a much harder question whether it makes that power exclusive.” So he leaves the question for another case on the flimsy premise that a U.S. passport treating Jerusalem as part of Israel “does not concern recognition.”
      Still, Scalia must find some power for Congress to pass the law in question. He stitches Congress’s authority over passports from the threads of the various foreign policy-related powers in Article I. He is joined in this by Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., all three of whom found no power for Congress to enact Obamacare under the broadly phrased power to regulate interstate commerce.
      Thomas, on the other hand, sides with the president on this one. He bases his conclusion, however, not so much on the Reception Clause, but on the totally open-ended clause at the beginning of Article II that vests “the executive power” in the president of the United States. Scalia is shocked. Thomas’s conception of the presidency, he says, “is more reminiscent of George III than George Washington.”
      The two originalists also part ways on Congress’s power to meddle with passports. Thomas sees little basis for Congress to act under its specifically enumerated powers nor under the broadly phrased Necessary and Proper Clause. The Jerusalem passport law is “improper,” Thomas concludes, because it seeks to instruct the president on the exercise of his executive powers. For Scalia, the law is just a run-of-the-mill policy disagreement.
      In past cases, Scalia has been a fan of presidential power, but not in this one. Why not? Harvard law professor Noah Feldman sees inconsistency on his part and his fellow dissenters’. “The conservatives don’t like this president and his claims of executive power,” Feldman writes for BloombergView. “[M]ake no mistake,” he concludes. “Contemporary politics helped shape the outcome” in the case.
      In the play The Originalist, playwright John Strand accurately captures Scalia’s philosophy in the opening scene. “I am an originalist,” Scalia declares. “Okay. Anybody need a definition? Originalism: to interpret the Constitution as it is written and as it was understood when its authors crafted the original document. As simple as that.”
      Make no mistake: it is not as simple as that. Credit Scalia with constitutional consistency at times — on the Fourth Amendment, for example. But all too often originalism for him is merely a pretext for, yes, legislating from the bench.