Monday, June 8, 2015

Scalia: Pres. must not have "uncontrolled mastery" over foreign affairs [cough]

The SCOTUS passport case that came down today (pdf here) reflected mostly a liberal-conservative split (Kennedy writing the majority opinion), with Thomas wandering off on his own.  At issue was a statutory provision requiring the State Dept., on request, to list Israel as the place of birth in a passport of a U.S. citizen born in Jerusalem.  The majority struck this down, saying it improperly constrained the President's power to recognize foreign governments and noting that the official executive-branch policy is (in the words of the syllabus, i.e. the opinon summary) that it "does not recognize any country as having sovereignty over Jerusalem."

Scalia, writing the main dissent (which was the only opinion I spent any time looking at), was indignant ("nonsense," logic worthy of "Mad Hatter") and professed to have enormous concern for the separation of powers and that the President should not have "uncontrolled mastery" over foreign policy.  Two things: first, Scalia insisted that recognition is "a type of legal act," not "a type of statement," which ignores or glosses over the fact that legal acts of recognition are themselves statements; second, one might be forgiven for wondering whether Scalia would have been so concerned about untrammeled presidential power in foreign affairs if this case had concerned something other than Israel and Jerusalem.

Note: Post edited slightly after initial posting.

8 comments:

LFC said...

Completely off-topic blogosphere alert: Hector St Clare is back! as Holbo's thread on (whatever it was on) pushes past 400 comments. Of course Hector, as far as I'm aware, has been banned from Crooked Timber, but at this pt no one gives a f***ing s**t.

LFC said...

p.s. I do know what that thread's topic was, I was just being flippant.

LFC said...

pps I now have a vague recollection that Holbo un-banned Hector from Holbo's posts. So ... never mind.

Ronan said...

I have to say I find Hector pretty funny, and even charming, although he's seemingly pathologically committed to never arguing in good faith.

LFC said...

Well, he appears to be an opponent of feminism and a proponent of some form of ultra-conservative, perhaps even medieval, Catholicism. Unless you think he's just joking. Btw, I'm about to take a long-ish break from posting. Need to catch up on some other things.

Ronan said...

I accept that he believes those things, but I think theyre exaggerated for effect and he makes no attempt to argue his case beyond engaging in rhetoric. (just to add, I enjoyed the book review .....just had nothing useful to say about it. Usually that doesnt stop me, but Im trying to turn over a new leaf)

LFC said...

I enjoyed the book review

Thanks.
I owe you a substantive comment at yr blog on epidemiology of violence -- haven't forgotten but give me a couple of days.

Ronan said...

Thanks LFC, just saw the comments. Will reply over next week.