This Note examines assertions of exclusive presidential power in light of the Supreme Court’s 2015 decision in Zivotofsky ex rel. Zivotofsky v. Kerry. This Note argues that, contrary to the suggestion of some commentators, the decision enhances the President’s ability to disregard legislative restrictions at flashpoints of national security decisionmaking.
As Zivotofsky II saw, the President exclusively holds the power to recognize foreign countries. More significant, however, are the analytic moves that the Court introduces when assessing a President’s defiance of an act of Congress—a setup where the President’s power reaches its “lowest ebb.”
The Zivotofsky II Court reshaped the lowest-ebb posture by relying heavily on historical practice and functionalist arguments to support its conclusion that the President enjoys exclusive authority over foreign recognition. Such arguments have never before been invoked by the Court to invalidate an act of Congress in the field of foreign affairs and systematically favor the executive in future separation-of-powers standoffs. Moreover, even if courts read Zivotofsky II narrowly, executive branch lawyers will not. And because justiciability doctrines often insulate executive action from judicial review, the primary (if not the only) legal assessment of hard national security choices will be made by lawyers in the executive branch.
To illustrate the importance of Zivotofsky II’s impact on executive power, this Note presents three case studies in areas where the political branches have ambiguous or overlapping authority and where the structural advantages of the executive branch are uniquely important—covert actions, electronic surveillance, and the disposition of captured enemy combatants.
Zivotofsky II and National Security Decisionmaking at the Lowest Ebb,
66 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol66/iss7/4