The Real Meaning of Zivotofsky

Abstract

Last year, the Supreme Court decided Zivotofsky, which many considered an immensely consequential political question case. Commentators called the decision far-reaching and stated that the Court had made clear to lower courts that the political question doctrine is of extremely limited applicability. Scholars of international law, in particular, said that Zivotofsky would lead to increased judicial involvement in foreign affairs. More specifically, from a doctrinal perspective, some academics suggested that the Court in Zivotofsky had signaled that it was returning to the classical, and away from the prudential, version of the political question doctrine. Such a shift would arguably be significant, in that it would lead to more frequent judicial involvement in foreign affairs disputes. Yet, given various factors, Zivotofsky is probably not a meaningful jurisprudential move on this score. In particular, the Supreme Court in prior cases had already preferenced Baker’s classical factors over the prudential components of the Baker test, and lower courts have continued to cite all six Baker factors in the wake of Zivotofsky. Nevertheless, three other aspects of the case may prove to be systemically important: Zivotofsky vigorously reasserted the narrowness of the political question doctrine, was firm in its pro-justiciability approach to cases implicating federal statutes, and was arguably pathbreaking in its refusal to defer to the Executive branch regarding the potential foreign policy costs of judicial review. Taken together, these components of Zivotofsky signal to Congress that they can encourage judicial review of, in particular, sensitive Executive-driven national security policies by enacting statutes on point. If one’s aim is to hold the Executive accountable for his policies, then one might at first think a broad, pro-justiciability reading of Zivotofsky will impel beneficial rule of law and accountability results. Congress can effectuate its resistance to Executive national security actions via statute, bolstered by judicial support ex post. More likely, however encouraging judicial review in this way will be a dangerous avenue for critics of targeted killings to take. In particular, if Congress enacts a statute giving the families of those killed via targeting a cause of action, courts may use Zivotofsky to more frequently find cases involving that statute justiciable. But after so doing, those courts may actually legitimate questionable Executive policies, without providing any real oversight or review. Consequently, if one is interested in constraining the Executive in the national security realm, then – somewhat counter-intuitively – one should be skeptical of Zivotofsky as a means to effectuate such constraints.