Washington Post (Op-Ed)
By Eugene Kontorovich
June 10, 2015
I
wrote an amicus brief in support of the petitioner in the Zivotosfksy
case with Alan Gura, and blogged about it extensively here. While I
obviously disagree with the
decision, it was not so terrible on the law, though I think the
application to the facts was way off.
Today
I have a piece commenting on the decision and its implications over at
ScotusBlog’s instal-symposium on the case. Some extracts:
[T]he
opinion may actually be broader than it seems, because applying even an
exclusive recognition power to the facts of the case would not
obviously result in a win
for the president. The case goes beyond recognition in two ways. First,
it does not involve the traditional forms of recognition – countries
and governments. Rather, it relates to the geographic scope of
countries. Second, the challenged action – the passport
law – was not an act of recognition, as the Court concedes.
Say
Congress passes a set of tariffs, or immigration quotas, for India, and
specifies that by this they mean Kashmir also. Can the president refuse
to apply them to Kashmir?
Or to turn it around, could the president apply Pakistani tariffs and
immigration quotas to Kashmir when Congress says to apply Indian ones,
on the grounds that it interferes with his power of recognition?
These
are not far-fetched examples. Assume Congress wants to make a law
relating to Israel – immigration quotas, or customs duties. That law now
would presumably not apply
to Jerusalem, a fairly striking development. The president’s power to
avoid laws through (non)recognition becomes even greater when, as with
Israel, he can selectively recognize – that is, treat the territory as
part of a country for some purposes, but not
for others.
Indeed,
in the short term, the decision may give support to legislative efforts
to use language such as “Israel and the territories under its
jurisdiction” in trade and
other legislation relating to Israel. Some might fear this blurs the
distinction between Israel and the West Bank, but such blurring is
already inherent in the Jerusalem policy. Such legislation becomes
necessary for Congress to accomplish and implement legislative
trade policy.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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