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Marty Lederman on Zivotofsky v. Kerry
Michael Ramsey

At Just Security, Marty Lederman has a series of interesting posts on Zivotofsky v. Kerry, with this one focused on the exchange between Justice Thomas and Justice Scalia:  Thoughts on Zivotofsky, Part Four: Justice Thomas as constitutional iconoclast (or, “What was so terrible about King George III, anyway?”).

Professor Lederman seems especially upset by the proposition that Congress' power to carry into execution the powers of other branches does not allow Congress to limit the power of other branches:

As I noted in my previous post, the other eight Justices in Zivotofsky strongly affirm Congress’s authority to enact laws “necessary and proper” to regulate the President’s own constitutional authorities.  (They disagree among themselves as to whether that congressional power to restrict the President carries over to statutes regulating the President’s recognition power; but otherwise, they express similar views of Congress’s extensive powers to limit or direct the President in the area of foreign affairs.)

Justice Thomas would reject that well-established understanding altogether.  As he has done in recent separate opinions in cases such as ComstockKebodeaux and Gonzales v. Raich, he articulates a dramatically constricted view of Congress’s necessary and proper power, in which much of what Congress has done over the course of our constitutional history would be deemed not “proper.”  In particular, when it comes to legislation regulating the conduct of the other two branches, Justice Thomas would hold that such a law is not proper if “the branch to which the power is allocated objects to the action” (and perhaps, he adds, even if that branch does not object!).  Thomas favorably cites an article by Sai Prakash and Mike Ramsey to the effect that “Congress has the general power to legislate in support of the President’s foreign policy goals.  But . . . [s]ince it is derivative of the President’s power, it must be exercised in coordination with, and not in opposition to, the President.”

Suffice it to say that this understanding of the Necessary and Proper Clause would effect a fairly radical shift in our constitutional history.

I'm not sure why this is a radical view, and Professor Lederman doesn't explain.  All I meant by it is that if Congress relies on its power to pass laws necessary and proper to carry into execution the President's power, Congress must be acting in a way that is actually furthering the President's power, not restricting it.  Otherwise, simply as a textual matter, I don't it's accurate to say that Congress is carrying into effect; Congress is keeping it from taking effect.  (I assume this is also all Justice Thomas meant).

In Zivotofsky, for example, I don't think one can plausibly say that Congress is carrying into effect the President's recognition power when Congress tells the President what to recognize.  This is Congress taking over the recognition power, not helping the President to exercise it.  It's like me helping you eat your ice cream, not by getting you a spoon, but by eating it myself.

However (and I think there may be some misunderstanding here) this proposition does not prevent Congress from passing laws that restrict or direct the President's foreign affairs powers pursuant to other powers of Congress.  Thus Justice Scalia thought that Congress' naturalization power enabled Congress to make the regulations at issue in Zivotofsky.  If that's right, then Congress can rest on that power, and Congress' power to carry into execution the President's powers is irrelevant.  The only reason the latter power mattered to Justice Thomas is that he thought (and I agree) there was no other relevant power of Congress.

As a result, I don't think Justice Scalia's sneer about King George is appropriate.  The point about Congress' power to carry into execution the President's powers is fairly minor and comes into play only when Congress has no other enumerated power.  Congress has many powers in foreign affairs and I fail to see how having to rely on them would leave Congress powerless to direct foreign affairs to a significant extent.

As a further note, contrary to Professor Lederman I don't think eight Justices rejected Thomas' point here -- I think none of them reached it.  The dissenters thought Congress had power under the naturalization clause.  The majority didn't address the question whether Congress had an Article I power because it thought, in any event, the President had an exclusive Article II power that displaced any power Congress might have.