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Zivotofsky v. Kerry and the Balance of Power

  • Jean Galbraith (a1)

Extract

Zivotofsky v. Kerry (Zivotofsky II) is a case about the constitutional distribution of power. The narrow question is whether Congress or the President has the power to determine whether a U.S. citizen born in Jerusalem can have “Israel” listed as his country of birth on his passport when the President does not formally recognize Jerusalem as part of Israel. As for the broader question—well, the case is packed with broader questions. Does the President have the exclusive constitutional authority to undertake the international legal act of recognition? Does the President have further exclusive constitutional authority to control the content of executive-branch communications with foreign nations? What powers does Congress have in foreign affairs? And are these justiciable issues for the federal courts to resolve?

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References

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1 Zivotofsky v. Sec. of State, 725 F. 3d 197, 221 (2013) (Tatel, J., concurring).

2 Corwin, Edward S., The President: Office and Powers 200 (1940).

3 Zivotofsky v. Clinton, 123 S. Ct. 1421, 1427 (2012) (citations and quotation marks omitted).

4 Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2116 (2015) (Roberts, C.J., dissenting) [hereinafter Zivotofsky II ].

5 Id.

6 See id. at 2096 (Breyer, J., concurring) (noting that “I continue to believe that this case presents a political question . . . [b]ut because precedent precludes resolving this question on political question ground . . . I join the Court’s opinion”). Justice Breyer had been the lone dissenter in the first round of Zivotofsky.

7 Several commentators have noted the Court’s apparent disapproval of the Curtiss-Wright dicta. See, e.g., Lederman, Marty, Thoughts on Zivotofsky, Part Seven: “Curtiss-Wright–out of sight,” and the fate of the argument for an exclusive executive diplomatic authority, Just Security (June 14, 2015 , 12:56 PM); Glennon, Michael J., The Supreme Court Deals a Blow to Executive Authority, Foreign Affairs Snapshot (June 23, 2015); Scoville, Ryan, Legislative Diplomacy after Zivotofsky, Lawfare (June 15, 2015 , 9:00 AM); Dorf, Michael, Zivotofsky May Be Remem bered as Limiting Exclusive Presidential Power, Dorf on Law (June 8, 2015 , 12:52 PM); but see Goldsmith, Jack, Why Zivotofsky is a Significant Victory for the Executive Branch, Lawfare (June 8, 2015 , 3:44 PM) (observing that the Court has some “unadulterated Curtiss-Wright-ism “ even while it nominally offers “pooh-poohing of Curtiss-Wright”).

8 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936); see also Zivotofsky II, 135 S.Ct. at 2089 (quoting this language).

9 Zivotofsky II, 135 S.Ct. at 2090.

10 Id. at 2086 (citations omitted).

11 Id.

12 Id. at 2086, 2088; see also United States v. Pink, 315 U.S. 203, 229 (1942).

13 E.g., Zivotofsky II, 135 S.Ct. at 2088 (quoting United States v. Belmont, 301 U.S. 324, 330 (1937)).

14 Id. at 2086.

15 For elaboration on this claim, see Galbraith, Jean, Human Rights Treaties in and beyond the Senate: The Spirit of Senator Proxmire, in For the Sake of Present and Future Generations: Essays on International Law, Crime and Justice in Honour of Roger S. Clark (Linton, Suzannah et al. eds., forthcoming 2015).

16 Compare Zivotofsky II, 135 S.Ct. at 2117 (Scalia, J., dissenting) (concluding that even a “miserly understanding” of the Necessary and Proper Clause authorizes Congress to “make grants of citizenship ‘effectual’ by providing for the issuance of certificates authenti cating them”) with Bond v. United States, 134 S. Ct. 2077, 2098-99 (2014) (Scalia, J., concurring in the judgment) (claiming that the Necessary and Proper Clause does not authorize Congress to make treaties effectual by implementing them).

17 See Cohen, Harlan Grant, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. Wash. L. Rev. 380 (2015); Sitaraman, Ganesh & Wuerth, Ingrid, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897 (2015).

18 Zivotofsky II, 135 S.Ct. at 2084-2094 (Part II.A, Part II.B., and Part II.C respectively). For a discussion of this mixed-method approach, see Bradley, Curtis A., Zivotofsky and pragmatic foreign relations law , Scotusblog (June 9, 2015 , 9:16 AM).

19 Id. at 2118-2119 (Scalia, J., dissenting).

20 Id. at 2085.

21 Id.

22 Galbraith, Jean, International Law and the Domestic Separation of Powers, 99 Va. L. Rev. 987, 1009-18 (2013).

23 Henkin, Louis, Foreign Affairs and the United States Constitution 316 (1996). It is worth noting that Henkin considered the recognition power to be exclusive to the President. See id. at 88.

24 Zivotofsky II, 135 S.Ct. at 2081.

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