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 in nearly a century of the historical relationship of the executive and legislative branches to the recognition power. 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.
This Article’s objective is to spark discussion about the standards by which we judge international courts. Traditional justifications for the authority of international courts are based on outmoded assumptions of their role and impact. State consent and procedural fairness to litigants are insufficient to ground the legitimacy of institutions that may adjudicate the international rights and duties of nonlitigants, deeply affect the interests of nonlitigating stakeholders, and shape the law prospectively. These realities mandate a new approach to the legitimacy of international courts. This Article presents alternative or additional approaches for justifying the authority of international courts rooted in both procedure and substance. First, legitimacy requires a reimagining of procedural fairness to include those whose international rights and duties are being adjudicated by international courts. Democratic theory can help to justify the authority of international courts so long as stakeholders are given the opportunity to participate in the formulation of policies that affect them. In addition, international courts must adhere to certain universal standards of justice. They cannot facilitate the violation of a set of core norms, including prohibitions against torture, slavery, racial discrimination, and genocide, and still retain their legitimacy. Finally, the extent to which an international court implements the objectives it was created for also affects its legitimacy.
This Article examines application of the doctrine of relevance to exclude evidence of the motivations underlying the actions of civilly disobedient criminal defendants. While not constitutionally protected, civil disobedience plays an important role in the political, social, and legal history of the United States. Though acts of civil disobedience involve violations of law, actions of protest differ from actions of nonprotest crime in a number of important respects. Civilly disobedient protesters undertake their action openly, motivated by the desire to call public attention to an injustice. Their motivation is distinct from that of nonprotester criminal defendants who seek to promote individual goals. Despite the importance of protester motivation in distinguishing the civilly disobedient defendant, courts routinely exclude evidence of protester motivations as not relevant in criminal proceedings. Applied broadly in many contexts, the doctrine of relevance is applied narrowly in the context of motivations of protesters. The constrained application utilized in protester trials overlooks evolving understandings of evidentiary relevance. The most important of these evolving concepts are narrative relevance and blameworthiness. Evidence of underlying motivation provides an essential piece of a cohesive narrative explaining a protester’s actions and intentions. The evidence also permits a factfinder to conduct the evaluation of blameworthiness required for a determination of criminal culpability. Ultimately, the Article concludes that courts should recognize the admissibility of protester motivation within criminal trials of civilly disobedient protesters.