Zivotofsky was expected to make a valuable contribution in the form of its analysis of the scope of exclusive executive power. But the Court failed to set forth a compelling or clear method of deciding exclusivity, and instead, it chose to rely on a variety of indeterminate sources. This approach is troubling for many reasons, not least because it opens the door to problematic “functional” analyses of the type exemplified by Zivotofsky itself.
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This morning, the U.S. Supreme Court engaged deeply in Zivotofsky v. Kerry with significant questions implicating foreign relations law and the separation of powers, and—perhaps surprisingly—provided some illuminating answers. Lawfare has drafted a summary of the Court's 93-page opinion.
The Supreme Court in Zivotofsky held that the President can disregard a statute that requires him to designate “Israel” on passports of U.S. citizens born in Jerusalem because the statute infringes on the President’s exclusive power to recognize foreign sovereigns. It is very unusual for the Court to give the President a victory in defiance of a congressional restriction, and it is literally unprecedented for the Court to do so in the foreign relations context, as the Chief Justice noted in the first sentence of his dissent. This is one important feature of the case.