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Presidential Signing Statements and Dialogic Constitutionalism

  • Catherine Powell (a1)

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When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotofsky v. Kerry (Zivotofsky II), Jack Goldsmith hailed the decision as a “vindication” of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the “constitutionally ludicrous” work of an overreaching, “imperial presidency.”

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References

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1 Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076 (2015) [hereinafter Zivotofsky II].

2 Goldsmith, Jack, Zivotofsky’s Vindication (and the New York Times’ approval) of Signing Statements, Lawfare (June 9, 2015 , 9:16 AM).

3 Editorial, The Imperial Presidency at Work, N.Y. TIMES, Jan. 15, 2006 .

4 Bradley, Curtis A. & Vázquez, Carlos M., Introduction to Agora: Reflections on Zivotofsky v. Kerry, 109 AJIL Unbound 1 (2015).

5 Wuerth, Ingrid, Zivotofsky v. Kerry: A Foreign Relations Law Bonanza , Lawfare (July 12, 2015 , 2:30 PM).

6 Cohen, Harlan Grant, Zivotofsky II’s Two Visions for Foreign Relations Law , 109 AJIL Unbound 10 (2015).

7 Bradley, Curtis A., Historical Gloss, the Recognition Power, and Judicial Review, 109 AJIL Unbound 2 (2015).

8 Galbraith, Jean, Zivotofsky v. Kerry and the Balance of Power , 109 AJIL Unbound 16 (2015).

9 Spiro, Peter J., Normalizing Foreign Relations Law after Zivotofsky II, 109 AJIL Unbound 22 (2015).

10 Sitaraman, Ganesh & Wuerth, Ingried, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897 (2015).

11 Cf.Powell, Catherine, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States, 150 U. Pa. L. Rev. 245 (2001) (discussing the value of a dialogic approach between federal and state governments in domestic incorporation of human rights law).

12 See id.; Galbraith, supra note 8.

13 Powell, Catherine, Tinkering with Torture in the Aftermath of Hamdan: Testing the Relationship Between Internationalism and Constitutionalism, 40 N.Y.U. J. Int’l L. & Pol. 723 (2008).

14 Goldsmith, supra note 2.

15 Powell, supra note 11. While not personally invested in the outcome of the case, by coincidence, my son was born in Jerusalem in March 2003, shortly after the statute at issue went into effect and Zivotofsky’s parent sought to have “Israel” put on their son’s U.S. passport. We lived in Jerusalem that year because my son’s father was the chief of staff to the UN Special Envoy to the Middle East Peace Process at the time.

16 Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, 1366 (2002).

17 Id. (emphasis added).

18 Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, 2 Pub. Papers 1698 (Sep. 30, 2002).

19 Id.

20 Zivotofsky II, 135 S.Ct. at 2082 (noting that when Palestinian leaders protested this new U.S. statute—despite the signing state ment—the Secretary of State was forced to respond by “advis[ing] diplomats to express their understanding of ‘Jerusalem’s importance to both sides and to many others around the world.’” Id. (internal citation omitted)).

21 The status of Jerusalem is one of the most difficult issues to resolve in Israeli-Palestinian conflict and diplomats involved in the peace negotiations have therefore preserved it as a final status issue to be resolved as part of a comprehensive peace plan.

22 Cf., Medellín v. Texas, 552 U.S. 491 (2008).

23 In fact, Bush did not exercise the veto power for his first five and a half years in office, and yet he issued more signing statements based on constitutional objections than any other president. Kay, Jamie E., Eight Years, Twelve Vetoes: Why President Bush Chose to Ignore his Veto Power, 2 Student Pulse, No. 05, 2010 . See also Savage, Charlie, Bush Challenges Hundreds of Laws, N.Y. Times, Apr. 30, 2006.

24 Powell, supra note 13.

25 Cf., Powell, supra note 11.

26 Bradley, Curtis A. & Posner, Eric A., Presidential Signing Statements and Executive Power, 23 Const. Comment. 307, 308 (2006).

27 Id.

28 Id. at 335.

29 Id. at 336 (citing, among others, the well-known Memorandum from Walter Dellinger, Assistant Attorney Gen., Office of Legal Counsel, to the Honorable Abner J. Mikva, Counsel to the President para. 3 (Nov. 2, 1994)).

30 The approaches to dialogic constitutionalism outlined here are drawn from Tushnet, Mark, Popular Constitutionalism as Political Law, 81 Chi.-Kent L. Rev. 991 (2006). The political science view originated with Robert Dahl and was updated by Barry Friedman. See, e.g., Dahl, Robert A., Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279 (1957); Friedman, Barry, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993).

31 Tushnet, supra note 30, at 998 (citing Dahl and Friedman).

32 Id. (citing Post and Siegel and describing how these social movements “offer constitutional visions, typically oppositional to the vision dominant in the courts [and perhaps other branches] when the movements begin[,]” but who overtime influence the Court, though not through the standard political process and appointments process).

33 Id. at 999 (citing Ackerman and explaining that “[u]nlike the social movements model, here the mechanism of change is not persuasion but submission”).

34 Id. at 999. See also Tushnet, Mark V., The Constitution Outside of the Courts: A Preliminary Inquiry, 26 VAL. U. L. REV. 437 (1992).

35 Spiro, supra note 9.

36 Galbraith, supra note 8. (citing Edward S. Corwin, The President: Office and Powers 200 (1940)).

37 Id.

38 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

39 Goldsmith, supra note 2.

40 Id.

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