Zivotofsky v. Kerry

Zivotofsky v. Kerry is a bonanza of foreign relations issues and doctrine: the executive Vesting Clause, the President as the “sole organ” of the nation, the need for the nation to speak with “one voice,” Curtiss-Wright, Youngstown, diplomatic history and practice, the Republic of Texas, secrecy and dispatch, Citizen Genet, the Spanish-American war, international law in constitutional interpretation, the status of Taiwan, formalism and functionalism, exceptionalism and normalization, the list goes on and on!!

Zivotofsky was a case about the recognition power, but it was also the first in quite a while to offer any insight into the Justices’ views on the nature of the President’s power to communicate with foreign sovereigns. The past six months have featured two high-profile examples of official contacts between Congress and foreign governments. Both incidents, while deeply controversial, raise questions about the longstanding assumption of executive exclusivity and demonstrate the need for closer analysis on the precise nature of the Article II diplomacy power. They also suggest a need to explore whether there’s any affirmative support for legislative diplomacy in Article I.