One element of Zivotofsky II that has received insufficient attention is the sharp disagreement between Justices Thomas and Scalia about the scope of presidential and congressional powers in foreign relations. Here I examine the implications of their disagreement for the Vesting Clause theory of residual presidential foreign relations powers.
Latest in 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!!
Here is the summer 2015 supplement for my casebook (with Curtis Bradley), Foreign Relations Law: Cases and Materials (5th ed. 2014). This supplement contains, among other things, an excerpt of (and Notes and Questions on) Zivotofsky v.
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.
Jack Goldsmith and Marty Lederman sit down to discuss the Supreme Court’s Zivotofksy ruling. In its opinion, the Court ruled that the President has the exclusive power to recognize foreign sovereigns, and he therefore can disregard a congressional statute requiring him to designate “Israel” on the passports of U.S. citizens born in Jerusalem. What are the consequences of this broad decision? What does the Court's opinion now mean for the method of determining the President’s exclusive powers? And could the Court have reached a more limited ruling?
The Supreme Court granted cert. today in Zivotofsky v. Clinton. In that case the D.C. Circuit, on remand from the Supreme Court, held that Section 214(d) of the 2003 Foreign Relations Authorization Act, which requires the Secretary of State to record “Israel” as the place of birth on a U.S.