Reinstein on Congress, the President, and the Recognition Power

Robert Reinstein, Temple University James E. Beasley School of Law, has posted Is the President’s Recognition Power Exclusive? which is forthcoming in the Temple Law Review.  Here is the abstract:

The power of the United States government to recognize foreign states and governments is much broader than the authority merely to place a symbolic stamp of legitimacy on that state or government. Recognition allows foreign governments to establish diplomatic relations with the United States and also confers other substantial benefits on those governments. Despite its importance to foreign relations, the recognition power was not enumerated in the United States Constitution or discussed in the Constitutional Convention or ratification debates.

A recent decision of the Court of Appeals for the District of Columbia Circuit, Zivotofsky ex rel. Zivotofsky v. Secretary of State, is the first to hold, in the context of a conflict between an act of Congress and an executive decision, that the recognition of foreign states and governments is an exclusive executive power. A seemingly innocuous passport statute created a conflict between executive and congressional policies over a controversial, and as yet unresolved, political issue: the status of Jerusalem. The court relied on post-ratification history which, it concluded, established that Presidents consistently claimed, and Congress consistently acknowledged, that the recognition power was exclusively an executive prerogative. The passport statute was held to unconstitutionally infringe on the Executive’s recognition power.

This Article provides the first in-depth analysis of the historical relationship of the executive and legislative branches to the recognition power in nearly a century. The Article examines in detail the post-ratification recognition events discussed by the Court of Appeals, beginning with the decisions of the Washington administration during the Neutrality Crisis in 1792-93. The Article also examines events not addressed by the Court of Appeals, most significantly early congressional acts of recognition and the 1979 Taiwan Relations Act.

The Article concludes that post-ratification history establishes an authority in the President to recognize foreign states and governments but provides little support for any claim of an exclusive recognition power. However, post-ratification history is not by itself dispositive and the legal importance of the history is examined through the lens of certain fundamental questions, including the significance of presidential and congressional inactions, acquiescence and acknowledgement. The Article analyzes these questions through constitutional doctrine and normative values, ultimately concluding that the constitutional text, original understanding, structure, and post-ratification evidence do not support an exclusive recognition power in the Executive. The President’s recognition power is subject to the legislative control of Congress.