not endow the ―foreign affairs‖ power to the President nor to any other branch. In fact, the Constitution makes no reference to ―foreign affairs.‖ Nevertheless, it has long been established
that the President has a special role in the conduct of foreign affairs.
Similarly, the Constitution makes no reference to recognition. Historically, presidents have made decisions concerning recognition, beginning with President George Washington.
court relies also on precedents of the Supreme Court. The latter declared ―more than once‖ that the recognition power lies exclusively with the President.
Among the cases mentioned, the court refers to
Although the court was aware of the difference between
, it concluded that the difference does not distinguish the two cases: [u]nlike in
, here the legislation that conflicts with the President‘s recognition power was enacted by
the Congress, not a state. But, as we today hold, the President exclusively exercises the recognition power. The Congress, like a state, may not impermissibly intrude on an
Executive power. Contrary to
Zivotofsky‘s assertion, then, the fact that the Congress, rather than a state legislature, enacted section
214(d) does not distinguish this case from
The court concludes by saying: [h]aving reviewed t
he Constitution‘s text and structure, Supreme Court precedent and longstanding post
-ratification history, we conclude that the President exclusively holds the power to determine whether to recognize a foreign sovereign.
In another context, while referring to
Prof. Halberstam observed: ―None involved a conflict between Congress and the President.‖
Her following paragraph also pertains to our question: The Supreme Court has never held that Congress could not exercise one of its constitutional powers
because doing so would interfere with the President‘s powers over the conduct of foreign affairs…The
Court has held the converse: that Presidential action, which might have been constitutional if Congress had not acted, was unconstitutional
because it was inconsistent with legislation enacted by Congress…
The court cites Justice Jackson‘s
concurring opinion in
Youngstown Sheet & Tube Company v. Sawyer (Youngstown).
―Justice Jackson set forth a tripartite framework for eva
President‘s powers to act depending on the level of congressional acquiescence.‖
The court mentions that both parties agree that the case of
falls into the third category in the above framework, which stipulates: [w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter.‖
It is also worthwhil
e quoting another sentence of Justice Jackson‘s in
which has become the classic statement on the scope of executive-legislative power.
[w]hile the Constitution diffuses power the better to secure liberty…[I]t enjoins upon its branch
es separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.
Had the court in the
case considered that quotation too, it might have concluded differently.
Although, as mentioned above, the court made its conclusion after ‖[h]aving reviewed,‖ among others, ―Supreme Court precedent,‖ again at the level of Federal Appeals Court,
our question regarding a situation where the Pr
esident‘s power does not conform to a legislation enacted by the Congress has not been answered conclusively on the basis of Supreme Court‘s precedents.