Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The Supreme Court considered whether the President has the exclusive power to grant formal recognition to a foreign sovereign in Zivotofsky v. Kerry.1 At issue in that case was a provision of the Foreign Relations Authorization Act that allowed United States citizens born in Jerusalem to list their place of birth as “Israel” in their passports.2 This provision sought to override legislatively a State Department policy that instructed agency employees to list the place of birth for citizens born in Jerusalem as “Jerusalem” in passports because the United States did not recognize any country as having sovereignty over Jerusalem.3

After examining the historical practice related to recognition and other functional considerations, the Supreme Court held that the President retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds.4 Although Congress, pursuant to its enumerated powers in the field of foreign affairs, may properly legislate on matters which precede and follow a presidential act of recognition—including in ways which may undercut the policies that inform the President’s recognition decision—it may not alter the President’s recognition decision.5

Footnotes

1

576 U.S. 1 (2015).

2

Id. at 7.

3

Id.

4

The Court identified the Reception Clause, along with additional provisions in Article II, as providing the basis for the Executive’s power over recognition. Id. at 11–15.

5

See Zivotofsky, 576 U.S. at 29–30. While observing that Congress may not enact a law that directly contradicts a presidential recognition decision, the Court stated that Congress could still express its disagreement in multiple ways: For example, it may enact an embargo, decline to confirm an ambassador, or even declare war. But none of these acts would alter the President’s recognition decision. Id. at 30