Checks And Balances In The Supreme Court Case Of John Marshall

Since the days of Chief Justice John Marshall, The Supreme Court has been the arbiter of constitutionality among the three branches of government. Through this judicial review, The
Supreme Court has become the bastion of The Constitution. In the current case of Zivotofsky v. Kerry, the very checks and balances that hold the triarchy of American government stable are bearing inspection. Fomented in a small passage of the Foreign Relations Authorization Act in 2002 with, “for purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel”
(FRAA 214). Following the passing of this bill, however, President George W. Bush noted that if the law was “construed as mandatory rather that advisory [it] would impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states" (Holder, p.1). Thus, the conflict was created. Originally tried as Zivotofsky v. Clinton, this prequel hearing allowed the argument to be heard by the Appellate and Supreme Courts, and following a petition for certiorari after a 2013 loss, the Zivotofsky’s found themselves back in the Supreme Court. Through both historical and legal evidence, as displayed in the following arguments, Congress should be allowed its first official capacity as a deciding member in foreign recognition. The first major foray into legislative-executive foreign recognition was with Henry Clay in 1818.
During the Latin American Civil War, after then Secretary of State John Quincy Adams initiated negotiations with Spain about the outcome of Florida, Clay introduced a motion in the House to recognize an independent Buenos Aires. Already the executive and the legislative body are pitted against each other in opinion, much like the current case in modern day with Israel. Although Clay’s motion was defeated, it was defeated because representatives believed it was Clay’s politically unscrupulous ambition that drove him to introduce the motion, rather than a qualm over constitutionality. Clay continued to introduce these motions as the scene in Latin America developed, but was continually denied even by those that believed congress had power over foreign recognition because of his partisan motives. However, once Spain was acquired and the states formalized, President Monroe told congress that the provinces that had declared independence “ought to be recognized” (Monroe 116, 118). Following this announcement, Monroe added that, “Should Congress concur in the view herein presented, they will doubtless see the propriety of making the necessary appropriations for carrying it into effect.” Congress then created an act appropriating one hundred thousand dollars for missions to the independent nations on the American continent, as the President saw fit. This first example of the legislative and executive powers coming together was not the last. Indeed, Congress was given ultimate control over the recognition of Haiti and Liberia, with another joint resolution for Cuba with President McKinley. In fact, on discussing the recognition of Texas, President Jackson yielded the entire initiative to Congress. Although much of history supports the executive power having control over recognizing foreign states, by the examples provided, there is certainly not an exclusive right. Because of
these conflicting historical moments, there is no clear historical support for either side, although certainly one for cooperation. Congress, four times, has displayed a legislative recognition ability, most recently with The Taiwan Relations Act , although there was an expressed view that Congress did not have complete power in overturning the President’s stance. On top of this, the Office of the President has signed Congressional recognition acts four times. Overall, the post-ratification history shies away from resting sole recognition power in the executive. Even if this evidence is not final, the Acquiescence of both powers suggests confusion and uncertainty regarding its status. In regards to constitutional doctrine and past Supreme Court decisions, The Supreme Court has relied on Justice Jackson. Jackson’s tripartite argument towards the conflict of executive and legislative power supports a congressional authority. It allows the President to act “in absence of either a congress tonal grant or denial of authority” (Jackson, 637). However, in the presence of controlling congressional acts, executive power is unable to supersede the legislative body’s authority. Although the history of executive agreements