Thoughts on Zivotofsky, Part One: How groundbreaking is it?

There’s already been a great deal of valuable online analysis of Monday’s decision in Zivotofsky v. Kerry, and there’s sure to be much more to follow.  The case is fascinating in many respects, as it implicates a wide range of important questions about the foreign affairs powers of the political branches, and the role of the Court.  For basic background on the case and the issues it raised, see this post of mine from last year.

I have several preliminary reactions to the Court’s decision, which I’ll offer in a series of posts, to make for easier reading.  I’ll save the merits of the decision until the final couple of posts.  In the meantime . . .

Let’s start with the Chief Justice’s dissenting opinion, and the question of whether, and to what extent, Zivotofsky is a departure from the Court’s historical jurisprudence.  The Chief’s opinion begins and ends the same way.  At the outset he writes: “Today’s decision is a first:  Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”  He closes with a similar flourish: “[T]he Court takes the perilous step—for the first time in our history—of allowing the President to defy an Act of Congress in the field of foreign affairs.”

Is Zivotofsky as groundbreaking a decision as the Chief Justice suggests?  Yes and no.  It is true that this is the first case in which the Supreme Court has ever held that the President prevails at the famous “lowest ebb” of the third category in Justice Jackson’s famous Steel Seizure typology.  Yet it is also misleading for the Chief Justice to write that “[f]or our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs.”

For one thing, there have been many circumstances in which Presidents have “contradicted” statutes in he field of foreign affairs but the issue was not litigated or, in any event, did not reach the Supreme Court on the merits.

More importantly, perhaps, there have been exceedingly few cases in which the Executive has argued in the Supreme Court that the President was constitutionally entitled to disregard a statute in the field of foreign affairs.  For example, with a very minor possible exception, the Executive did not make any such argument in the four cases the Chief Justice cites in support of his claim about “our first 225 years”–MedellínYoungstownHamdan, and Little v. Barreme.  (One of those four cases—Medellín—did not even involve a restrictive statute.)[1]

The only pre-Zivotofsky case that comes to mind in which the Executive proffered such an argument is Rasul v. Bush, in which one of the SG’s arguments in favor of reading the habeas statute not to cover petitions from Guantanamo detainees was that such a reading would impermissibly constrain the Commander in Chief in his prosecution of an armed conflict.  The Court implicitly rejected that constitutional argument, without so much as mentioning it, by construing the statute to cover GTMO detainees.  [For more on the history of such claims of “preclusive” executive power in Court cases, see pages 761-766 here.]

If I’m right about that count (and If I’ve overlooked any cases, please let me know, thanks), it means that the President is now 1 for 2 in the Court in such cases—in which case Zivotofsky certainly remains a potentially important decision, but is hardly as dramatic an historical departure as the Chief Justice suggests.

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[1] The minor, partial exception would be Youngstown.  In that case, the President went to great lengths to assure the public that he would abide by Congress’s will, and the government’s brief did not suggest otherwise.  Solicitor General Biddle suggested in passing at oral argument that perhaps President Truman was not constitutionally obliged to adhere to Congress’s direction; but even then, Biddle reiterated that the issue was not raised in that case because Truman had repeatedly insisted that he would abide by any congressional resolution of the question. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).