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.
Agora: Reflections on Zivotofsky v. Kerry Presidential Signing Statements and Dialogic Constitutionalism, 109 AJIL Unbound 51 (2015-2016)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/685