Executive Power

Zivotofsky v. Kerry: A Foreign Relations Law Bonanza

By Ingrid Wuerth
Sunday, July 12, 2015, 2:30 PM

I have a short commentary on Zivotofsky v. Kerry (forthcoming in the American Journal of International Law), which is now available here. What follows in this post is an edited version of the abstract.

The case is, I note, 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! The actual impact of the case for executive actions and the outcome of inter-branch disputes remains to be seen (for differing views on this question see here and here), but the case will be cited and debated in so many areas of foreign relations law that is destined to become a classic in the field.

Perhaps an overlooked feature of the case in the commentary to date is the support it provides for the use of international law in constitutional interpretation. All of the Justices write or join opinions which rely on modern international law to define “recognition,” a category of conduct which now has great constitutional significance because the Court holds that the President’s power over it is exclusive. With the exception of Justice Thomas, the Justices rely on contemporary international law to define the scope of recognition without providing a methodological reason for doing so, and often without tracing or linking contemporary international law back to 18th century international law.

As for the normalization of foreign relations law – a trend recently identified and explored at length here by Ganesh Sitaraman and myself -- the case is a decidedly mixed bag. Contrary to normalization, the case holds for the government based in part on functional reasoning which at times seems broadly couched. On the other hand, the case is ultimately decided on quite narrow reasoning, the famous Curtiss-Wright dicta is roundly criticized, and much of the Court’s functional reasoning is narrowly tailored to the context of recognition. What is clear from the case is that the Supreme Court is willing to put itself at the center of foreign relations disputes, just as the Court is at the center of many other major political and ideological disputes in American life.