Instant Analysis: Zivotofsky v. Kerry

June 8th, 2015

I will add my thoughts about Zivotofsky as I make my way through the opinion.

Justice Kennedy’s majority decision

AMK cites RHJ:

In considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635–638 (1952) (concurring opinion). The framework divides exercises of Presidential power into three catego- ries: First, when “the President acts pursuant to an ex- press or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id., at 635. Second, “in absence of either a congressional grant or denial of authority” there is a “zone of twilight in which he and Congress may have concurrent authority,” and where “congressional inertia, indifference or quiescence may” invite the exercise of executive power. Id., at 637. Finally, when “the President takes measures incompatible with the expressed or implied will of Congress . . . he can rely only upon his own constitutional powers minus any consti- tutional powers of Congress over the matter.” Ibid. To succeed in this third category, the President’s asserted power must be both “exclusive” and “conclusive” on the issue. Id., at 637–638.  …

In so doing the Secretary acknowledges the President’s power is “at its lowest ebb.” Youngstown, 343 U. S., at 637. Because the President’s refusal to implement §214(d) falls into Justice Jackson’s third category, his claim must be “scru- tinized with caution,” and he may rely solely on powers the Constitution grants to him alone. Id., at 638.

The Court avoids interpreting the “vesting” clause:

The Constitution thus assigns the President means to effect recognition on his own initiative. Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation. Because these specific Clauses confer the recognition power on the Presi- dent, the Court need not consider whether or to what extent the Vesting Clause, which provides that the “execu- tive Power” shall be vested in the President, provides further support for the President’s action here. Art. II, §1, cl. 1.

Recognition is only one part of the political process, allowing Congress to interact in other respects.

In foreign affairs, as in the domestic realm, the Consti- tution “enjoins upon its branches separateness but inter- dependence, autonomy but reciprocity.” Youngstown, 343 U. S., at 635 (Jackson, J., concurring). … In practice, then, the President’s recognition determina- tion is just one part of a political process that may require Congress to make laws. The President’s exclusive recogni- tion power encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and govern- ments, including their territorial bounds. Albeit limited, the exclusive recognition power is essential to the conduct of Presidential duties. The formal act of recognition is an executive power that Congress may not qualify.

And in a citation of one of my favorite Federalists:

All this, of course, underscores that Congress has an important role in other aspects of foreign policy, and the President may be bound by any number of laws Congress enacts. In this way ambition counters ambition, ensuring that the demo- cratic will of the people is observed and respected in foreign affairs as in the domestic realm. See The Federalist No. 51, p. 322 (J. Madison).

Kennedy seems to suggest that the bickering between Congress and POTUS is to blame for this unprecedented judicial resolution:

No single precedent resolves the question whether the President has exclusive recognition authority and, if so, how far that power extends. In part that is because, until today, the political branches have resolved their disputes over questions of recognition.

The Court does reject an “unbounded” reading of foreign power:

The Secretary now urges the Court to define the execu- tive power over foreign relations in even broader terms. He contends that under the Court’s precedent the Presi- dent has “exclusive authority to conduct diplomatic rela- tions,” along with “the bulk of foreign-affairs powers.” Brief for Respondent 18, 16. In support of his submission that the President has broad, undefined powers over foreign affairs, the Secretary quotes United States v. Curtiss-Wright Export Corp., which described the Presi- dent as “the sole organ of the federal government in the field of international relations.” 299 U. S., at 320. This Court declines to acknowledge that unbounded power. A formulation broader than the rule that the President alone determines what nations to formally recognize as legiti- mate—and that he consequently controls his statements on matters of recognition—presents different issues and is unnecessary to the resolution of this case.

Apparently the “sole organ” language was dicta!

This description of the President’s exclusive power was not necessary to the holding of Curtiss-Wright—which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination. Indeed, Curtiss- Wright did not hold that the President is free from Con- gress’ lawmaking power in the field of international relations. The President does have a unique role in communi- cating with foreign governments, as then-Congressman John Marshall acknowledged. See 10 Annals of Cong. 613 (1800) (cited in Curtiss-Wright, supra, at 319). But whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.

Simply because foreign affairs are involved, the Executive does not have exclusive powers.

In a world that is ever more compressed and interde- pendent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. See, e.g., Medellín v. Texas, 552 U. S. 491, 523–532 (2008); Youngs­ town, 343 U. S., at 589; Little v. Barreme, 2 Cranch 170, 177–179 (1804); Glennon, Two Views of Presidential For- eign Affairs Power: Little v. Barreme or Curtiss-Wright? 13 Yale J. Int’l L. 5, 19–20 (1988); cf. Dames & Moore v. Regan, 453 U. S. 654, 680–681 (1981). It is not for the President alone to determine the whole content of the Nation’s foreign policy.


The Court relies on Noel Canning to focus on, in honor of Allen Iverson, “practice.”

Having examined the Constitution’s text and this Court’s precedent, it is appropriate to turn to accepted understandings and practice. In separation-of-powers cases this Court has often “put significant weight upon historical practice.” NLRB v. Noel Canning, 573 U. S. ___, ___ (2014) (slip op., at 6) (emphasis deleted). Here, history is not all on one side, but on balance it provides strong support for the conclusion that the recognition power is the President’s alone. As Zivotofsky argues, certain his- torical incidents can be interpreted to support the position that recognition is a shared power. But the weight of historical evidence supports the opposite view, which is that the formal determination of recognition is a power to be exercised only by the President.

Instances where the power was shared do not suggest it was not exclusive.

But even a brief survey of the major historical examples, with an emphasis on those said to favor Zivo- tofsky, establishes no more than that some Presidents have chosen to cooperate with Congress, not that Congress itself has exercised the recognition power.

Reiterating the gridlock point, the Court stresses that this case was novel because Congress acted against the wishes of the President:

For the most part, Congress has acquiesced in the Executive’s exercise of the recognition power. On occasion, the President has chosen, as may often be pru- dent, to consult and coordinate with Congress. As Judge Tatel noted in this case, however, “the most striking thing” about the history of recognition “is what is absent from it: a situation like this one,” where Congress has enacted a statute contrary to the President’s formal and considered statement concerning recognition.

And a special shout-out to Texas:

A decade later, President Jackson faced a recognition crisis over Texas. In 1835, Texas rebelled against Mexico and formed its own government. See Goebel 144–147. But the President feared that recognizing the new gov- ernment could ignite a war. See A. Jackson, To the Senate and House of Representatives of the United States (Dec. 21, 1836), in 3 Messages and Papers of the Presidents 265, 266–267 (J. Richardson ed. 1899). After Congress urged him to recognize Texas, see Cong. Globe, 24th Cong., 1st Sess., 453 (1836); H. R. Rep. No. 854, 24th Cong., 1st Sess. (1836), the President delivered a message to the Legisla- ture. He concluded there had not been a “deliberate in- quiry” into whether the President or Congress possessed the recognition power. See A. Jackson, in 3 Messages and Papers of the Presidents, at 267. He stated, however, “on the ground of expediency, I am disposed to concur” with Congress’ preference regarding Texas. Ibid. In response Congress appropriated funds for a “diplomatic agent to be sent to the Republic of Texas, whenever the President of the United States . . . shall deem it expedient to appoint such minister.” Act of Mar. 3, 1837, 5 Stat. 170. Thus, although he cooperated with Congress, the President was left to execute the formal act of recognition.

Based on these practices, Congress has acquiesced:

This history confirms the Court’s conclusion in the instant case that the power to recognize or decline to recognize a foreign state and its territorial bounds resides in the President alone. For the most part, Congress has respected the Executive’s policies and positions as to formal recognition. At times, Congress itself has defended the President’s constitutional prerogative. Over the last 100 years, there has been scarcely any debate over the President’s power to recognize foreign states. In this respect the Legislature, in the narrow context of recogni- tion, on balance has acknowledged the importance of speaking “with one voice.” Crosby, 530 U. S., at 381. The weight of historical evidence indicates Congress has ac- cepted that the power to recognize foreign states and governments and their territorial bounds is exclusive to the Presidency.

Here is the key sentence of the holding:

If the power over recognition is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s state- ments.

Citing Jackson, the Court stresses how narrow the opinion is:

As Justice Jackson wrote in Youngstown, when a Presi- dential power is “exclusive,” it “disabl[es] the Congress from acting upon the subject.” 343 U. S., at 637–638 (concurring opinion). Here, the subject is quite narrow: The Executive’s exclusive power extends no further than his formal recognition determination. But as to that determination, Congress may not enact a law that directly contradicts it. This is not to say Congress may not express its disagreement with the President in myriad ways. For example, it may enact an embargo, decline to confirm an ambassador, or even declare war. But none of these acts would alter the President’s recognition decision.

Is Justice Kennedy writing that Congress–over the President’s opposition–could enact an embargo of a country, refuse to confirm an ambassador, or even declare a war that the President did not seek?

Justice Scalia’s principal dissent

I love this opening:

Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs. The royal prerogative included the “sole power of sending ambassadors to foreign states, and receiving them at home,” the sole authority to “make treaties, leagues, and alliances with foreign states and princes,” “the sole prerogative of making war and peace,” and the “sole power of raising and regulating fleets and armies.” 1 W. Blackstone, Commentaries *253, *257, *262. The People of the United States had other ideas when they organized our Government. They considered a sound structure of balanced powers essential to the preservation of just government, and international rela- tions formed no exception to that principle.

The People therefore adopted a Constitution that di- vides responsibility for the Nation’s foreign concerns between the legislative and executive departments. The Constitution gave the President the “executive Power,” authority to send and responsibility to receive ambassa- dors, power to make treaties, and command of the Army and Navy—though they qualified some of these powers by requiring consent of the Senate. Art. II, §§1–3. At the same time, they gave Congress powers over war, foreign commerce, naturalization, and more. Art. I, §8. “Fully eleven of the powers that Article I, §8 grants Congress deal in some way with foreign affairs.” L. Tribe, American Constitutional Law, §5–18, p. 965.

This case arises out of a dispute between the Executive and Legislative Branches about whether the United States should treat Jerusalem as a part of Israel. The Constitu- tion contemplates that the political branches will make policy about the territorial claims of foreign nations the same way they make policy about other international matters: The President will exercise his powers on the basis of his views, Congress its powers on the basis of its views. That is just what has happened here.

Applying a “miserly” reading of congressional powers, Congress should be able to issue passports pursuant to its powers over naturalization:

As the Necessary and Proper Clause confirms, every congres- sional power “carries with it all those incidental powers which are necessary to its complete and effectual execu- tion.” Cohens v. Virginia, 6 Wheat. 264, 429 (1821). Even on a miserly understanding of Congress’s incidental au- thority, Congress may make grants of citizenship “effec- tual” by providing for the issuance of certificates authenti- cating them.

Because of this flexibility, Congress can specify Israel over Jerusalem:

To be sure, recording Zivotovsky’s birthplace as “Jerusalem” rather than “Israel” would fulfill these objectives, but when faced with alterna- tive ways to carry its powers into execution, Congress has the “discretion” to choose the one it deems “most beneficial to the people.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). It thus has the right to decide that recording birthplaces as “Israel” makes for better foreign policy. Or that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.

But this must be both necessary and proper:

No doubt congressional discretion in executing legisla- tive powers has its limits; Congress’s chosen approach must be not only “necessary” to carrying its powers into execution, but also “proper.” Congress thus may not transcend boundaries upon legislative authority stated or implied elsewhere in the Constitution. But as we shall see, §214(d) does not transgress any such restriction.

In short, Scalia argues that listing Jerusalem is not recognition:

It is utterly impossible for this deference to private requests to constitute an act that unequivocally manifests an inten- tion to grant recognition. … Granting a request to specify “Israel” rather than “Jerusalem” does not recognize Israel’s sovereignty over Jerusalem, just as granting a request to specify “Bel- fast” rather than “United Kingdom” does not derecognize the United Kingdom’s sovereignty over Northern Ireland.

Scalia tells us what he really thinks about international diplomacy:

That symbolism may have tremendous significance as a matter of international diplomacy, but it makes no differ- ence as a matter of constitutional law.

Even if the Constitution gives the President sole power to extend recognition, it does not give him sole power to make all decisions relating to foreign disputes over sover- eignty. To the contrary, a fair reading of Article I allows Congress to decide for itself how its laws should handle these controversies.

Scalia also raises an interesting point–the Declaration of War itself embodies an element of recognition:

Congress may express its own views about these matters by declaring war, restricting trade, denying foreign aid, and much else besides. To take just one example, in 1991, Congress responded to Iraq’s inva- sion of Kuwait by enacting a resolution authorizing use of military force. 105 Stat. 3. No doubt the resolution re- flected Congress’s views about the legitimacy of Iraq’s territorial claim. The preamble referred to Iraq’s “illegal occupation” and stated that “the international community has demanded . . . that Kuwait’s independence and legiti- mate government be restored.” Ibid. These statements are far more categorical than the caption “United States Policy with Respect to Jerusalem as the Capital of Israel.” Does it follow that the authorization of the use of military force invaded the President’s exclusive powers? Or that it would have done so had the President recognized Iraqi sovereignty over Kuwait?

And a shout-out to Texas:

After Texas won independence from Mexico, the Senate resolved that “the State of Texas having established and maintained an independent Government, . . . it is expedient and proper . . . that the independent political existence of the said State be acknowledged by the Government of the United States.” Cong. Globe, 24th Cong., 2d Sess., 83 (1837); see id., at 270.

Scalia makes an election pun:

The Court instead announces a rule that is blatantly gerrymandered to the facts of this case. It concludes that, in addition to the exclusive power to make the “formal recognition determination,” the President holds an ancil- lary exclusive power “to control . . . formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds.” Ante, at 29. It follows, the Court explains, that Congress may not “requir[e] the President to contradict an earlier recogni- tion determination in an official document issued by the Executive Branch.” Ibid. So requiring imports from Jeru- salem to be taxed like goods from Israel is fine, but requir- ing Customs to issue an official invoice to that effect is not? Nonsense.

And Alice and Wonderland:

Recognition is a type of legal act, not a type of state- ment. It is a leap worthy of the Mad Hatter to go from exclusive authority over making legal commitments about sovereignty to exclusive authority over making statements or issuing documents about national borders. The Court may as well jump from power over issuing declaratory judgments to a monopoly on writing law-review articles.

Rather than lamenting the gridlock, Scalia insists that the Congress is free to disagree with the President:

But even if the Constitution empow- ers the President alone to extend recognition, it nowhere obliges Congress to align its laws with the President’s recognition decisions. Because the President and Con- gress are “perfectly co-ordinate by the terms of their com- mon commission,” The Federalist No. 49, p. 314 (C. Ros- siter ed. 1961) (Madison), the President’s use of the recog- nition power does not constrain Congress’s use of its legis- lative powers.

We even get an analysis of the Take Care Clause:

The Court elsewhere objects that §214(d) interferes with the autonomy and unity of the Executive Branch, setting the branch against itself. The Court suggests, for in- stance, that the law prevents the President from main- taining his neutrality about Jerusalem in “his and his agent’s statements.” Ante, at 26. That is of no constitu- tional significance. As just shown, Congress has power to legislate without regard to recognition, and where Con- gress has the power to legislate, the President has a duty to “take Care” that its legislation “be faithfully executed,” Art. II, §3. It is likewise “the duty of the secretary of state to conform to the law”; where Congress imposes a respon- sibility on him, “he is so far the officer of the law; is ame- nable to the laws for his conduct; and cannot at his discre- tion sport away the vested rights of others.” Marbury v. Madison, 1 Cranch 137, 158, 166 (1803). The Executive’s involvement in carrying out this law does not affect its constitutionality; the Executive carries out every law. 

At least he’s supposed to.

Scalia also says the President is obligated under the Take Care Clause to follow laws, or court judgments, that “flout treaties.”

The Court’s error could be made more apparent by applying its reasoning to the President’s power “to make Treaties,” Art. II, §2, cl. 2. There is no question that Con- gress may, if it wishes, pass laws that openly flout treaties made by the President. Head Money Cases, 112 U. S. 580, 597 (1884). Would anyone have dreamt that the President may refuse to carry out such laws—or, to bring the point closer to home, refuse to execute federal courts’ judgments under such laws—so that the Executive may “speak with one voice” about the country’s international obligations? To ask is to answer. Today’s holding puts the implied power to recognize territorial claims (which the Court infers from the power to recognize states, which it infers from the responsibility to receive ambassadors) on a higher footing than the express power to make treaties.

Scalia turns to a point he echoed in Noel Canning–a functionalist approach will always favor the Executive:

The vices of this mode of analysis go beyond mere lack of footing in the Constitution. Func- tionalism of the sort the Court practices today will system- atically favor the unitary President over the plural Con- gress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty. 

Not that Obama is a King or anything…

Justice Scalia takes great exception with Justice Thomas’s concurring opinion:

The concur- rence’s stingy interpretation of the enumerated powers forgets that the Constitution does not “partake of the prolixity of a legal code,” that “only its great outlines [are] marked, its important objects designated, and the minor ingredients which compose those objects [left to] be de- duced from the nature of the objects themselves.” McCul- loch, 4 Wheat., at 407. It forgets, in other words, “that it is a constitution we are expounding.” Ibid.

Justice Scalia unleashes the sort of language he usually reserves for Breyer on Thomas:

That brings me, in analytic crescendo, to the concur- rence’s suggestion that even if Congress’s enumerated powers otherwise encompass §214(d), and even if the President’s power to regulate the contents of passports is not exclusive, the law might still violate the Constitution, because it “conflict[s]” with the President’s passport policy. Ante, at 24. It turns the Constitution upside-down to suggest that in areas of shared authority, it is the execu- tive policy that preempts the law, rather than the other way around.

Scalia also repeats a discussion of the take care clause, saying the President must execute.

Congress may make laws necessary and proper for carrying into execution the President’s powers, Art. I, §8, cl. 18, but the President must “take Care” that Congress’s legislation “be faithfully executed,” Art. II, §3. And Acts of Congress made in pursuance of the Constitu- tion are the “supreme Law of the Land”; acts of the Presi- dent (apart from treaties) are not. Art. VI, cl. 2.

This is a point I’ve made many, many times.

And Wow. Scalia accuses Thomas of favoring King George over George Washington:

Whereas the Court’s analysis threatens congressional power over foreign affairs with gradual erosion, the con- currence’s approach shatters it in one stroke. The combi- nation of (a) the concurrence’s assertion of broad, unenu- merated “residual powers” in the President, see ante, at 2–9; (b) its parsimonious interpretation of Congress’s enu- merated powers, see ante, at 13–17; and (c) its even more parsimonious interpretation of Congress’s authority to enact laws “necessary and proper for carrying into Execu- tion” the President’s executive powers, see ante, at 17–20; produces (d) a presidency more reminiscent of George III than George Washington.

Scalia drops the mic:

I dissent.

Chief Justice Robert’s dissent

It’s unprecedented!

Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Con- gress in the field of foreign affairs. We have instead stressed that the President’s power reaches “its lowest ebb” when he contravenes the express will of Congress, “for what is at stake is the equilibrium established by our constitutional system.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–638 (1952) (Jackson, J., concurring). JUSTICE SCALIA’s principal dissent, which I join in full, refutes the majority’s unprecedented holding in detail. I write separately to underscore the stark nature of the Court’s error on a basic question of separation of powers.

With some shades of Texas v. United States, when the President claims to have exclusive power, its claim is “Scrutinized with caution.”

Assertions of exclusive and preclusive power leave the Executive “in the least favorable of possible constitutional postures,” and such claims have been “scrutinized with caution” throughout this Court’s history. Id., at 640, 638; see Dames & Moore v. Regan, 453 U. S. 654, 668–669 (1981). For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs. See Medellín v. Texas, 552 U. S. 491, 524–532 (2008); Hamdan v. Rumsfeld, 548 U. S. 557, 590–595, 613–625 (2006); Youngstown, 343 U. S., at 587–589 (majority opin- ion); Little v. Barreme, 2 Cranch 170, 177–179 (1804).

Also, the Chief suggests that Article II, Section III (which includes the Take Care Clause) imposes duties, not an authorization of power:

But that provision, framed as an obligation rather than an authorization, appears alongside the duties imposed on the President by Article II, Section 3, not the powers granted to him by Article II, Section 2.

This is important because Presidents have at times argued the Take Care claus is in fact a grant of power, rather than a limitation on power.

The Chief specifically references the “international heckler veto” (here the ever-present Arab street0:

At most, the majority worries that there may be a per­ ceived contradiction based on a mistaken understanding of the effect of §214(d), insisting that some “observers inter- preted §214 as altering United States policy regarding Jerusalem.” Ante, at 28. To afford controlling weight to such impressions, however, is essentially to subject a duly enacted statute to an international heckler’s veto.

The Chief echoes a point that AMK made–that Congress can declare war against a country Congress recognized:

If, for example, the President recognized a particular country in opposition to Congress’s wishes, Congress could declare war or impose a trade embargo on that country. A neutral observer might well conclude that these legislative actions had, to put it mildly, created a perceived contradiction with the Presi- dent’s recognition decision. And yet each of them would undoubtedly be constitutional.

The Chief also rejects the “sole organ” language from Curtiss-Wright as dicta:

The expansive language in Curtiss-Wright casting the President as the “sole organ” of the Nation in foreign affairs certainly has attraction for members of the Execu- tive Branch. The Solicitor General invokes the case no fewer than ten times in his brief. Brief for Respondent 9, 10, 18, 19, 23, 24, 53, 54. But our precedents have never accepted such a sweeping understanding of executive power. See Hamdan, 548 U. S., at 591–592; Dames & Moore, 453 U. S., at 661–662; Youngstown, 343 U. S., at 587 (majority opinion); id., at 635, n. 2 (Jackson, J., con- curring); cf. Little, 2 Cranch, at 179 (Marshall, C. J.) (“I confess the first bias of my mind was very strong in favour of . . . the executive . . . [b]ut I have been convinced that I was mistaken.”).

And in the process, the Court takes the peri- lous step—for the first time in our history—of allowing the President to defy an Act of Congress in the field of foreign affairs.

Justice Thomas’s Concurring/Dissent

Justice Thomas’s opinion explains that with respect to foreign affairs, there are enumerated powers and “residual” powers.

Our Constitution allocates the powers of the Federal Government over foreign affairs in two ways. First, it expressly identifies certain foreign affairs powers and vests them in particular branches, either individually or jointly. Second, it vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II’s Vesting Clause.


For Thomas, the passport falls within these “residual” powers, but other consular reports are not included:

The President has long regulated passports under his residual foreign affairs power, and this portion of §214(d) does not fall within any of Congress’ enumerated powers. By contrast, §214(d) poses no such problem insofar as it regulates consular reports of birth abroad. Unlike pass- ports, these reports were developed to effectuate the natu- ralization laws, and they continue to serve the role of identifying persons who need not be naturalized to obtain U. S. citizenship. The regulation of these reports does not fall within the President’s foreign affairs powers, but within Congress’ enumerated powers under the Naturali- zation and Necessary and Proper Clauses.

In other words, unless a power is specifically enumerated concerning foreing affairs, the President’s residual powers fill in the gap. This a breathtakingly broad conception of the unitary executive.

How do we know what these residual powers are? Look at what the President has done that is not clearly enumerated:

These specific allocations, however, cannot account for the entirety of the foreign affairs powers exercised by the Federal Government. Neither of the political branches is expressly authorized, for instance, to communicate with foreign ministers, to issue passports, or to repel sudden attacks. Yet the President has engaged in such conduct, with the support of Congress, since the earliest days of the Republic.

And this is a product of the vesting clause:

The President’s longstanding practice of exercising unenumerated foreign affairs powers reflects a constitu- tional directive that “the President ha[s] primary respon- sibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.” Hamdi v. Rumsfeld, 542 U. S. 507, 580 (2004) (THOMAS, J., dissenting). Specifically, the Vesting Clause of Article II provides that “[t]he executive Power shall be vested in a President of the United States.” Art. II, §1. This Clause is notably different from the Vesting Clause of Article I, which provides only that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, §1 (emphasis added). By omitting the words “herein granted” in Article II, the Constitution indicates that the “executive Power” vested in the Presi- dent is not confined to those powers expressly identified in the document. Instead, it includes all powers originally understood as falling within the “executive Power” of the Federal Government.

This is an unadulterated vision of the unitary executive.

In an odd footnote Thomas says he will not address the role of the states with respect to foreign affairs. Today it is widely assumed they have none, but before the 14th Amendment, the states had significant authority over citizenship and naturalization.

These statements confirm that the “executive Power” vested in the President by Article II includes the residual foreign affairs powers of the Federal Government not otherwise allocated by the Constitution.1

1This discussion of the allocation of federal foreign affairs powers should not be understood to address the allocation of foreign affairs powers between the Federal Government and the States. The extent to which the States retained foreign affairs powers following ratification is not before us today.


And John Jay advised President Washington on Senate relations? So odd, as the Justices rejected the advisory opinion. Must be informal.

According to Washington’s diaries, he received similar advice from John Jay and James Madison about “the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls.” 6 The Diaries of George Washington 68 (D. Jackson & D. Twohig eds. 1979).

Justice Thomas also cited a case involving the EEOC from 1986 when he was the Chairman!

Parties cannot waive the correct interpretation of the law simply by failing to invoke it. See, e.g., EEOC v. FLRA, 476 U. S. 19, 23 (1986) ( per curiam). That the parties have argued the case as if the same analysis should apply to both documents does not relieve this Court of its responsibility to interpret the law correctly.


Thomas rejects the argument that Congress has power over passports from a “penumbra”:

Zivotofsky and congressional amici identify three poten- tial sources of congressional power to enact the portion of §214(d) dealing with passports. Zivotofsky first argues that it falls within Congress’ power “to regulate the issu- ance and content of United States passports.” Brief for Petitioner 17. The U. S. Senate, as amicus curiae, like- wise contends that it can be justified under Congress’ “plenary authority over passports,” which it derives from the penumbras of its powers “‘[t]o regulate Commerce with foreign Nations’” and “‘[t]o establish an uniform Rule of Naturalization.’” Brief for United States Senate 3 (quoting U. S. Const., Art. I, §8, cls. 3, 4). None of these arguments withstands scrutiny.

The Necessary and Proper Clause doesn’t fly either, citing his Comstock dissent:

As an initial matter, “Con- gress lacks authority to legislate [under this provision] if the objective is anything other than ‘carrying into Execu- tion’ one or more of the Federal Government’s enumerated powers.” Comstock, supra, at 161 (THOMAS, J., dissent- ing). The “end [must] be legitimate” under our constitu- tional structure. McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

Even if it is necessary, is not proper.

But even if the objective of a law is carrying into execu- tion one of the Federal Government’s enumerated powers, the law must be both necessary and proper to that objec- tive. The “Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.” Gonzales v. Raich, 545 U. S. 1, 60 (2005) (THOMAS, J., dissenting). Instead, “there must be a necessary and proper fit between the ‘means’ (the federal law) and the ‘end’ (the enumerated power or powers) it is designed to serve.” Comstock, supra, at 160 (THOMAS, J., dissenting). The “means” chosen by Con- gress “will be deemed ‘necessary’ if they are ‘appropriate’ and ‘plainly adapted’ to the exercise of an enumerated power, and ‘proper’ if they are not otherwise ‘prohibited’ by the Constitution and not ‘[in]consistent’ with its ‘letter and spirit.’ ” Id., at 160–161 (alteration in original).

Thomas’s cribbed understanding of “proper” renders this unconstitutional under the elastic clause:

The law in question must be “directly link[ed]” to the enumerated power. Id., at 169, n. 8. As applied to passports, §214(d) fails that test because it does not “‘carr[y] into Execution’” Congress’ foreign commerce or naturalization powers. Id., at 160. At most, it bears a

tertiary relationship to an activity Congress is permitted to regulate: It directs the President’s formulation of a document, which, in turn, may be used to facilitate travel, which, in turn, may facilitate foreign commerce. And the distinctive history of the passport as a travel rather than citizenship document makes its connection to naturaliza- tion even more tenuous.

Nor can this aspect of §214(d) be justified as an exercise of Congress’ power to enact laws to carry into execution the President’s residual foreign affairs powers. Simply put, §214(d)’s passport directive is not a “proper” means of carrying this power into execution.

Curious neither Thomas nor Scalia cited the Chief’s decision in NFIB discussing necessary and proper. Too soon?

Thomas also offers a definition of “proper,” something the Court didn’t really do in NFIB.

To be “proper,” a law must fall within the peculiar com- petence of Congress under the Constitution. Though “proper” was susceptible of several definitions at the time of the founding, only two are plausible candidates for use in the Necessary and Proper Clause—(1) “[f ]it; accommo- dated; adapted; suitable; qualified” and (2) “[ p]eculiar; not belonging to more; not common.” See 2 Johnson, supra, at 1537. Because the former would render the word “neces- sary” superfluous, McCulloch, supra, at 413, and we ordi- narily attempt to give effect “to each word of the Constitu- tion,” Knowlton v. Moore, 178 U. S. 41, 87 (1900), the latter is the more plausible. That is particularly true because the Constitution elsewhere uses the term “proper” by itself, Art. I, §9, Art. II, §§2, 3; the term “necessary” by itself, Art. I, §7; Art. V; and the term “necessary” as part of the phrase “necessary and expedient,” Art. II, §3. Thus, the best interpretation of “proper” is that a law must fall within the peculiar jurisdiction of Congress.

Citing Lawson, Thomas identifies three such limitations:

Our constitutional structure imposes three key limita- tions on that jurisdiction: It must conform to (1) the alloca- tion of authority within the Federal Government, (2) the allocation of power between the Federal Government and the States, and (3) the protections for retained individual rights under the Constitution. See Lawson & Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 291, 297 (1993). In other words, to be “proper,” a law “must be consistent with principles of separation of pow- ers, principles of federalism, and individual rights.” Id., at 297.

I framed the necessary and proper clause in a very similar respect in a brief I joined on behalf of the Cato Institute challenging the application of the Endangered Species Act to the Prairie Dog.

In addition, whether a law is proper calls for an analysis of how it affects the separation of powers. In Printz the Court stressed that while the Commerce Clause “authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.” Printz, 521 U.S. at 924 (citing New York v. United States, 505 U.S. 144, 166 (1992)). The Court expanded on this principle in Bond, explaining that “[n]o law that flattens the principle of state sovereignty, whether or not ‘necessary,’ can be said to be ‘proper.’” Bond v. United States, 134 S. Ct. 2077, 2101 (2014) (Scalia, J., concurring). The propriety of a law, as in Printz and Bond, must be judged with respect to background principles of the bounds of Congress’s powers.

We argued that the propriety of the law must be judged against the background principles of the Takings Clause which is a “protection for retained individual rights under the Constitution.”

One of these bounds—particularly relevant in this case—is the Takings Clause of the Fifth Amendment. As an original matter, the federal eminent domain power was perhaps best understood as an implied power. William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738, 1749-55 (2013). It is perverse that the federal government now relies on the Necessary and Proper Clause as a means to evade the requirement of paying just compensation for an indefinite moratorium on development—simply because the rodent could scurry anywhere on the “parcel as a whole.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 332 (2002) citing Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). Congress’s expansion of power beyond the bounds of the Bill of Rights—in derogation of the Takings Cause—is hardly necessary, and cannot be deemed proper.

Anyway, back to the opinion.

Thomas contends that allowing such a broad conception of narrow would “undermine” the separation of powers:

If Congress could rely on the Necessary and Proper Clause to exercise power expressly allocated to the other branches or to prevent the exercise of such power by other branches, it could under- mine the constitutional allocation of powers.

This limitation is that Congress must act in concert with the President concerning foreign affairs:

Second, a law could be “improper” if it takes one of those actions and the branch to which the power is allocated objects to the action. See Prakash & Ramsey 255–256 (“Congress has the general power to legislate in support of the President’s foreign policy goals. But . . . [s]ince it is derivative of the Presi- dent’s power, it must be exercised in coordination with, and not in opposition to, the President”).

And Thomas adds another element! What does it mean to “carry into execution”!!!!! He just added a third element to Necessary & Proper!

Because §214(d) is not proper, I need not resolve whether such a law could be understood to “carry into execution” the President’s power.

On page 22 of the concurring opinion, Thomas trains his fire on Scalia.

He takes issue with Nino’s interpretation of “Proper.”

But this theory does not account for the President’s power to act in this area, nor does it confront difficult questions about the applica- tion of the Necessary and Proper Clause in the case of conflict among the branches.

And Nino’s failure to address the vesting clause:

JUSTICE SCALIA disapproves of my “assertion of broad, unenumerated ‘residual powers’ in the President,” post, at 19, but offers no response to my interpretation of the words “executive Power” in the Constitution

Specifically, Scalia does not explicate what “proper” means:

Even more dubious, however, is the cursory treatment of the Necessary and Proper Clause in JUSTICE SCALIA’s dissent. He asserts that, in acting pursuant to that Clause, “Congress . . . may not transcend boundaries upon legislative authority stated or implied elsewhere in the Constitution.” Post, at 4. But he offers no explanation for what those implied limits might be or how they would operate. Does he, for example, agree that the word “proper” requires Congress to act in a manner “‘consistent with principles of separation of powers, principles of federalism, and individual rights’”? Supra, at 18 (quoting Lawson & Grainger, 43 Duke L. J., at 297). If so, then why does he find that requirement satisfied in this case? Is it because he views the President as having no constitutional author- ity to act in this area? Or is it because he views Congress’ directive to the President as consistent with the separa- tion of powers, irrespective of the President’s authority? If the latter, is that because he perceives no separation-of- powers limitations on Congress when it acts to carry into execution one of its enumerated powers, as opposed to the enumerated powers of another branch? And if that is the case, what textual, structural, or historical evidence exists for that interpretation? JUSTICE SCALIA’s dissent raises more questions than it answers.

Burn. CT says Nino views the supremacy of Congress as Parliament.

And his decision about the Constitution’s resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America.

But King George III was supreme over Parliament, so I don’t know if this analogy holds.

Thomas also explains why Ted Cruz is eligible to run for President:

It has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U. S. C. §§ 1401(c), (d), (g).

Thomas raises even another issue–what happens when Congress acts pursuant to an enumerated power that conflicts with the President’s residual power over foreign affairs.

As the issue is not presented, I need not decide how a direct conflict between action pursuant to an enumerated power of Congress and action pursuant to the residual foreign affairs power of the President should be resolved.

Thomas also derides the “international community” and the “modern view” of international law.

Scholars have long debated the extent to which official recognition by the sovereign states that make up the international community is necessary to bring a new “state” into the international community and thereby subject it to international law. Oppenheim §39, at 128–129. Resolving this debate is not necessary to resolve the issue at hand, so I describe the modern view of recognition without endorsing it.

Wow. What an opinion. 7,000 words here. I could teach an entire class on this case.  And I will.