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Zivotofsky: The Difference Between Inherent and Exclusive Presidential Power

  • Julian Davis Mortenson (a1)

Extract

If we stipulate that the Foreign Relations Authorization Act of 2002 presented a genuine constitutional conflict between the President and Congress, reasonable minds can differ about the outcome in Zivotofsky v. Kerry (Zivotofsky II). The Court’s answer to the specific question presented is actually the least interesting thing about the decision—indeed, the majority avers its insignificance so often that a casual reader might be forgiven for wondering why certiorari was granted in the first place.

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References

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1 I tend to be persuaded by the dissenting argument that, in context, Section 214(d) does not actually implicate recognition. See Zivotofsky ex rel. Zivotofsky v. Kerry, 134 S. Ct. 2076, 2114-2115 (2015) [hereinafter Zivotofsky II] (Roberts, C.J., dissenting) (finding no basis in international law for inferring de facto recognition from information on a passport, where the issuing executive’s frequently reiterated policy is against adopting any such recognition); id. at 2118-2120 (Scalia, J. dissenting) (similar).

2 453 U.S. 654 (1981).

3 343 U.S. 579, 634 (1952) (Jackson, J., concurring); id. at 593 (Frankfurter, J., concurring).

4 See generally Brief for Respondent, Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) (No. 13-0628), 2014 WL 4726506, at 10-11 (emphasis added).

5 Youngstown, 343 U.S. at 636–37 (Jackson, J., concurring). As a reminder, Zone 1 cases are those where “the President acts pursuant to an express or implied authorization of Congress”; Zone 2 cases involve executive “acts in absence of either a congressional grant or denial of authority”; and Zone 3 cases involve executive “measures incompatible with the express or implied will of Congress.” Id.

6 Zone 2’s reference to “contemporary imponderables” as a rule of decision speaks for itself. But the uncertainty does not end there. Although presidential authority is “at its maximum” in Zone 1, even authorized presidential action may sometimes nonetheless violate the Constitution. And although Zone 3 puts executive “power at its lowest ebb,” even presidential action that is flatly prohibited may sometimes be a matter of constitutional entitlement.

7 My favorite example of a rigorous analytic breakdown on this point is Prakash, Saikrishna, A Taxonomy of Presidential Powers, 88 B.U. L. Rev. 327 (2008). For more on the constitutional logic of this distinction, see Mortenson, Julian Davis, A Theory of Republican Prerogative, 87 S. Cal. L. Rev. 45, 52-61 (2015).

8 Zivotofsky II, 135 S. Ct. at 2084, 2086.

9 Id. at 2084, 2086; Id. at 2118, 2124 (Scalia, J., dissenting) (“I agree that the Constitution empowers the President to extend recognition on behalf of the United States, but I find it a much harder question whether it makes that power exclusive. . . . To be sure, early Presidents granted passports without express congressional authorization. But this point establishes Presidential authority over pass ports in the face of congressional silence, not Presidential authority in the face of congressional opposition.”).

10 Id. at 2084–86.

11 Id. at 2096.

12 Id. As the Court saw it, the problem with 214(d) “lies in how Congress exercised its authority over passports. . . . To allow Congress to control the President’s communication in the context of a formal recognition determination is to allow Congress to exercise that exclusive power itself.” It thus became the Court’s painful duty to declare unlawful this effort by Congress, under the pretext of executing its Article I powers, to pass a law for the accomplishment of objects not entrusted to the Government.

13 See Daugirdas, Kristina, Congress Underestimated: The Case of the World Bank, 107 AJIL 517 (2013).

14 Zivotofsky II, 135 S. Ct. at 2094–95.

15 Id. at 2076, 2081.

16 Id. at 2095-96.

17 Id. at 2090.

18 Id. at 2086.

19 Id. at 2087, 2095.

20 Id. at 2087.

21 Id. at 2086–87.

22 Id. at 2089 (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), Baker v. Carr, 369 U.S. 186 (1962), and Nat’l City Bank of N.Y. v. Republic of China, 348 U.S. 356 (1955)).

23 Id., 135 S. Ct. at 2091, 2094.

24 Id. at 2091-94 (quoting Zivotofsky ex rel. Zivotofsky v. Sec’y of State, 725 F.3d 197, 221 (D.C. Cir. 2013) (Tatel, J., concurring)).

25 Id. at 2090.

26 Id. at 2090.

27 Brief for Respondent, supra note 4, at 16.

28 Zivotofsky II, 135 S. Ct. at 2089.

29 Id. at 2089.

30 Id. at 2090.

31 Id. at 2126 (Scalia, J., dissenting).

32 Id. at 2125 (Scalia, J., dissenting).

33 See generally Bagenstos, Samuel R., The Anti-Leveraging Principle and the Spending Clause after NFIB, 101 Geo. L.J. 861 (2013).

34 See, e.g., Raven-Hansen, Peter & Banks, William, Pulling the Purse Strings of the Commander in Chief, 80 Va. L. Rev. 833 (1994); Stith, Kate, Congress’s Power of the Purse, 97 Yale L. J. 1343 (1998).

35 Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, § 214(b), 116 Stat. 1350, 1365–66 (2002).

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