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Normalizing Foreign Relations Law After Zivotofsky II

Published online by Cambridge University Press:  20 January 2017

Peter J. Spiro*
University Beasley School of Law
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These have been heady times for those interested in foreign relations law. The last twenty years have seen the field transformed. In the 1970s and 1980s, Vietnam had triggered significant attention on constitutional war powers, but that interest was more political than scholarly. Other foreign relations law issues were debated only at the margins. The Restatement (Third) supplied a largely unchallenged conventional wisdom in the area, even if some of its main points were more aspirational than descriptive. The courts had long been missing in action; though they had been active in the first century or so of the Republic on international law and foreign relations law issues, probably the most important Supreme Court ruling in the area from the second half of the twentieth-century merely served to confirm the judicial timidity. On many of the most important issues of foreign relations, sparse judicial precedents (such as they existed) had no more than oracular application to contemporary questions. Other actors nonetheless managed to achieve constitutional equilibria with little help from the courts or scholars. The second half of the twentieth-century was characterized by a remarkable level of constitutional stability regarding the allocation of foreign relations powers.

Agora: Reflections on Zivotofsky v. Kerry
Copyright © American Society of International Law 2015


1 Goldwater v. Carter, 444 U.S. 996 (1979) (refusing to reach merits regarding constitutional challenge to President Carter’s termina tion of Taiwan mutual security agreement).

2 Bradley, Curtis A. & Goldsmith, Jack L., Customary International Law as Federal Common Law: A Critique of the Modern Position, 100 Harv. L. Rev. 815 (1997)Google Scholar.

3 See Sitaraman, Ganesh & Wuerth, Ingrid, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897 (2015)Google Scholar; see also Cohen, Harlan Grant, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. Wash. L. Rev. 380 (2015)Google Scholar (arguing that Roberts Court has moved from functionalist to formalist approach in foreign relations law cases). For my earlier prediction that the courts would abandon foreign relations exceptionalism in the wake of changes in the global context, see Spiro, Peter J., Globalization and the (Foreign Affairs) Constitution, 63 Ohio St. L.J. 649 (2002)Google Scholar.

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

5 See Cohen, supra note 3, at 386; Sitaraman & Wuerth, supra note 3, at 1917.

6 Arizona v. United States, 132 S.Ct. 2492 (2012).

7 Zadvydas v. Davis, 121 S.Ct. 2491 (2001).

8 See also Cohen, supra note 3, at 395-96 (“Given the comparatively few explicit powers granted to the President in the Constitution, it may take a functionalist account rather than a formalist one to find in favor of the Executive.”).

9 United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936).

10 Koh, >Harold Hongju, The National Security Constitution: Sharing Power after the Iran-Contra Affair (1990)Google Scholar.

11 Jack Goldsmith suggests that this pruning of Curtiss-Wright is of no consequence now that Zivotofsky II itself delivers a substitute vehicle to the same destination. See Goldsmith, Jack, Why Zivotofsky is a Significant Victory for the Executive Branch, Lawfare, (June 8, 2015 Google Scholar, 3:44 PM). Zivotofsky II is an executive branch win, and it will give future presidents a new card to play in pressing presidential power. But Zivotofsky II has little chance of achieving the iconic status that Curtiss-Wright has commanded for so long; in terms of firepower, Curtiss-Wright ‘s heavy-caliber exposition and pedigree will not be matched by a new and equivocating opinion of the nature of Zivotofsky II. Executive branch lawyers will take the win here, but they must also be feeling the sting of being deprived of one of their favorite doctrinal weapons.

12 Domestic cases can involve huge stakes, too, as Sitaraman and Wuerth observe. Sitaraman & Wuerth, supra note 3, at 1946. But domestic cases (by definition) will involve actors within U.S. control. Whatever ills may result from judicial missteps in deciding domestic law cases, nuclear conflagration won’t be one of them.

13 While Sitaraman and Wuerth argue that the 2001 Authorization to Use Force should get the Chevron treatment, they don’t appear to argue that it should be in court. Id. at 1965.

14 As Carlos Vázquez and Curtis Bradley both note in response to Sitaraman and Wuerth, ordinary constitutional methodologies will sometimes point to distinctive resolution of foreign relations law issues. See Vazquez, Carlos M., The Abiding Exceptionalism of Foreign Relations Doctrine, 128 Harv. L. Rev. F. 305 (2015)Google Scholar; Bradley, Curtis A., Foreign Relations Law and the Purported Shift Away From “Exceptionalism”, 128 Harv. L. Rev. F. 294 (2015)Google Scholar.

15 Legislation relating to Iran nuclear agreement is consistent with this development. The measure takes away the President’s waiver authority extended under sanctions regimes for a set period of time upon the conclusion of an agreement to allow Congress to pass on its terms. See S. 615, 114th Cong. (2015).

16 Hence the ostensible criminalization of such activity by the 1799 Logan Act, which prohibits engaging with foreign governments with intent to influence their posture with respect to ongoing disputes or controversies with the United States. See 18 U.S.C. 953.

17 Schwarz, Hunter, Tom Cotton goes after Iran foreign minister—on twitter and in pretty personal terms, Wash. Post, Apr. 30, 2015 Google Scholar.

18 See, e.g., Bradley, Curtis A. & Morrison, Trevor, Presidential Power, Historical Practice, and Legal Constraint, 113 Colum. L. Rev. 1097 (2013)Google Scholar; Spiro, Peter J., Treaties, Executive Agreements, and Constitutional Method, 79 Texas L. Rev. 961 (2001)Google Scholar.

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