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06/09/2015

SCOTUSblog Symposium on Zivotofsky v. Kerry
Michael Ramsey

SCOTUSblog's symposium on Zivotofsky v. Kerry is up, with contributions from Curtis Bradley (Duke), Eugene Kontorovich (Northwestern), Alan Morrison (George Washington) and me.  Here are the links: 

Zivotofsky and pragmatic foreign relations law (Bradley)

Zivotofsky was not about recognition by Congress or the President (Kontorovich).

President wins in Zivotofsky: Will there be another battle? (Morrison)

Justice Thomas gets it right in Zivotofsky (me)

All the contributions are excellent.  Here I want to briefly take issue with one aspect of Professor Bradley's insightful comments.  One of his central points is that the majority opinion in Zivotofsky is functionalist rather than formalist, and as such may undermine the suggestion (made by Harlan Cohen and by Ganesh Sitaraman and Ingrid Wuerth) that the Court is "normalizing" foreign relations law.

My counterpoint is: "functionalist" (or "not normalizing") compared to what?  

Curtiss-Wright, the Court's most aggressive statement on presidential power in foreign affairs (albeit mostly in dicta) claimed (a) that the U.S. foreign affairs power did not arise from the Constitution but rather from the inherent nature of sovereignty; and (b) that U.S. foreign affairs power was principally lodged in the executive because the executive was most suited to exercise it.  Dames & Moore v. Regan (applying the concurrences from Youngstown) claimed that the interactions between Congress and the President could be derived from speculation about what Congress had "acquiesced" to as a result of its non-action with respect to somewhat activities (and this was supposedly an improvement on Curtiss-Wright!).  These cases are about as far from the text and original meaning of the Constitution as it's possible to get.

Justice Kennedy's opinion in Zivotofsky is an enormous improvement.  First, Kennedy rejects Curtiss-Wright -- by name, but also by looking to the text and history of the Constitution to find the meaning of a particular power, rather than relying on a generalized foreign affairs power.  Second, he relies on a particular clause -- the ambassador reception clause -- to establish a particular presidential power.  Third, Kennedy relies on both history and structural considerations to find that power exclusive.  (Professor Bradley calls this latter move functionalism, but I think it is entirely permissible, even to a formalist, to ask whether the specific power in question is in its nature the type that needs to be exclusive -- indeed, that's part of my argument for why the declare war clause is exclusive to Congress.).  Fourth, the holding is categorical: that the president's recognition power is exclusive, period -- not that the recognition power is exclusive in this case, under some balancing test that may or may not apply indeterminately in later cases.

True, there's a bit more on modern needs and practices in the majority opinion than a formalist would like to see, and true also I think the majority is wrong about the scope of the reception power (as I say in my contribution, and as Eugene Kontorovich also argues at greater length in his).  But especially compared to Curtiss-Wright (or Dames & Moore), the Zivotofsky majority is more formalist, more aligned with ordinary constitutional adjudication, and more tied to text and historical meaning, than has often been the case in foreign relations adjudication.  So I would count it in favor of the Cohen/Sittarman/Wuerth thesis, not against it.