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Agora: Reflections on Zivotofksy v. Kerry: Presidential Signing Statements and Dialogic Constitutionalism
TLDR
The role of presidential signing statements in facilitating inter-branch dialogue is discussed in this article, with the focus on the role of signing statements as a means of promoting clarity, cooperation, and compromise in constitutional interpretation.Abstract:
When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotojsky v. Kerry (Zivotojsky lI), Jack Goldsmith hailed the decision as a "vindication" of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the "constitutionally ludicrous" work of an overreaching, "imperial presidency." Others in this Symposium and elsewhere have covered what a "bonanza" Zivotojsi II is for foreign relations law, the competing visions of foreign relations at the case's center, the justices' reliance on historical practice in constitutional interpretation, and the ways in which the opinion departs from or reinforces the Roberts Court trend toward "normalizing" foreign relations law.Building on these themes, the focus of this essay is on how Zivotojsi II demonstrates the role that presidential signing statements can play in facilitating inter-branch dialogue, as a means of promoting clarity, cooperation, and compromise in constitutional interpretation. Notwithstanding my earlier criticism of specific signing statements in the context of the treatment of terror suspects -- a position I maintain today based on my disagreement with the substance of those statements -- I am not against signing statements per se.In fact, I agree with Goldsmith that "[s]igning statements are not in themselves cause for concern....Poor interpretations of Article II articulated in a signing statement can be a cause for concern -- especially in the rare signing statement that leads to non-compliance." Criticism of signing statements are often really debates about the proper reach of presidential power. Zivotojsky II provides an opportunity to assess the value of signing statements in a different light and to build on my earlier work on dialogic approaches to the Constitution.read more
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The Law: Zivotofsky v. Kerry: An Unnecessary Decision Grounded on Weak Precedents
TL;DR: In Zivotofsky v. Kerry, the Supreme Court engaged in an erroneous and unnecessary debate about the scope and definition of the president's powers over foreign affairs as discussed by the authors, which was unnecessary because the case embodied what was essentially a political question concerning the nature of the legislative process.
Journal ArticleDOI
Introduction to agora, part ii: reflections on zivotofsky v. kerry
TL;DR: The second part of an Agora on the Supreme Court's recent decision in Zivotofsky v. Kerry is published in this paper, where the authors discuss the implications of the decision for the balance of authority between Congress and the executive branch and for the future direction of U.S. foreign relations law.
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Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States
TL;DR: In this paper, the authors argue that the federal government should play a strong leadership role in coordinating information regarding state and local efforts to publicize best practices, to distill lessons learned, and to extract workable norms for possible adoption at the national level.
Journal ArticleDOI
Zivotofsky v. Kerry and the Balance of Power
TL;DR: Zivotofsky v. Kerry as discussed by the authors is a case about the distribution of power in the U.S. government in foreign policy, where the question is whether Congress or the President has the power to determine whether a US citizen born in Jerusalem can have “Israel” listed as his country of birth on his passport when the President does not formally recognize Jerusalem as part of Israel.
Journal ArticleDOI
Normalizing Foreign Relations Law After Zivotofsky II
TL;DR: The second half of the twentieth century was characterized by a remarkable level of constitutional stability regarding the allocation of foreign relations powers as mentioned in this paper, and the Restatement (Third) supplied a largely unchallenged conventional wisdom in the area.
Journal ArticleDOI
Introduction to AGORA: Reflections on Zivotofsky v. Kerry
TL;DR: In the case of Zivotofsky II as mentioned in this paper, the majority opinion of the Supreme Court held that the President's power to recognize foreign sovereigns is exclusive and that Congress' statute unconstitutionally interfered with that power.
Journal ArticleDOI
The Law: Zivotofsky v. Kerry: An Unnecessary Decision Grounded on Weak Precedents
TL;DR: In Zivotofsky v. Kerry, the Supreme Court engaged in an erroneous and unnecessary debate about the scope and definition of the president's powers over foreign affairs as discussed by the authors, which was unnecessary because the case embodied what was essentially a political question concerning the nature of the legislative process.