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Ingrid Wuerth on Zivotofsky v. Kerry
Michael Ramsey

Ingrid B. Wuerth (Vanderbilt University - Law School) has posted Zivotofsky v. Kerry: A Foreign Relations Law Bonanza (109 American Journal of International Law, 2015, forthcoming) on SSRN.  Here is the abstract:       

This short paper on Zivotofsky v. Kerry gives an overview of the case and analyzes its significance for international law in constitutional interpretation and for the Supreme Court’s “normalization” of foreign relations law. 

In terms of the overall significance of the case, it is a bonanza of foreign relations issues and doctrine: the executive Vesting Clause, the President as the “sole organ” of the nation, the need for the nation to speak with “one voice,” Curtiss-Wright, Youngstown, diplomatic history and practice, the Republic of Texas, secrecy and dispatch, Citizen Genet, the Spanish-American war, international law in constitutional interpretation, formalism and functionalism, the list goes on and on! Although the actual impact of the case on the outcome of inter-branch disputes remains to be seen, the case will be cited and debated in so many areas of foreign relations law that it is destined to become a classic in the field. 

The case also provides strong support for the use of international law in constitutional interpretation. All of the Justices write or join opinions which rely on modern international law to define “recognition,” a category of conduct which now has great constitutional significance because the Court holds that the President’s power over it is exclusive. With the exception of Justice Thomas, the Justices rely on contemporary international law to define the scope of recognition without providing a methodological reason for doing so, and often without tracing or linking contemporary international law back to 18th international law.

As for the normalization of foreign relations law – a trend recently identified and explored at length by Ganesh Sitaraman and myself [Ed.: see here] -- the case is a decidedly mixed bag. Contrary to the normalization trend, the case holds for the government and it also favorably cites some exceptionalist cases. On the other hand, the case is ultimately decided on quite narrow reasoning, the famous Curtiss-Wright dicta is roundly criticized, and much of the Court’s functional reasoning is narrowly tailored to the context of recognition.

As my comment here indicate, I think Professor Wuerth is too modest regarding Zivotofsky and the "normalization" hypothesis; in my view it fits well with her analysis of the trend in foreign relations law toward more formalistic (or at least legalistic) analysis, and with something of an originalist/textualist revival.