How Zivotofksy II and the Conservative Divide Over the Foreign Affairs Power Could Impact the Trump Administration

Abstract

In 2015, the United States Supreme Court held in Zivotofsky v. Kerry (Zivotofksy II) that the President of the United States possesses the exclusive power under the Constitution to recognize foreign sovereigns. The holding allegedly marked the first time in the nation’s history when the Supreme Court “accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” Although the case was (in theory) limited solely to the recognition power, Ziovtofsky II had (and still has) significant implications for the doctrine of separation of powers and executive power generally. For example, the case marked a rare instance where the Court upheld presidential action in a Justice Jackson tier three scenario. In that light, the case serves as an additional stamp of approval on an ever-increasing power grab by executives, particularly in the field of foreign affairs. Whether it be sending troops abroad (without a congressional declaration of war or authorization of the use of force), negotiating and concluding sole executive agreements (instead of treaties), or choosing to recognize a foreign sovereign (against the will of Congress), the scope of the foreign affairs power is incredibly significant to the United States and the international legal order. Two recent events warrant revisiting Zivotofsky II. First, in November 2016, the United States elected Donald J. Trump as president. Without commenting on the legitimacy of Trump’s policy stances on issues of foreign affairs, the reality is that many — on both the left and right — believe that one of the greatest dangers to the United States and the world as a whole is those positions. Thus, while the scope of the foreign affairs power is critical regardless of who is President, Zivotofksy II’s claim of an exclusive presidential power, and especially one in the field of foreign affairs, becomes even more critical in light of a Trump presidency. This Article discusses some of the direct impacts that Zivotofksy II could have for the Trump administration. Additionally, Justice Gorsuch has replaced Justice Scalia. What makes Justice Scalia’s death so critical for the foreign affairs power is that the position he took in his dissent in Zivotofksy II, which was joined by Chief Justice Roberts and Justice Alito, may not be shared by Justice Gorsuch, and it is certainly not shared by Justice Thomas. Thus, conservatives could be divided over the scope of the foreign affairs power on some key issues, including immigration and terminating treaties, for the Trump administration.