The Law: Zivotofsky v. Kerry: An Unnecessary Decision Grounded on Weak Precedents

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. It was unnecessary because the case embodied what was essentially a political question (which the Court chose not to address) concerning the nature of the legislative process. The Court discussed presidential power in terms of erroneous dicta in Youngstown v. Sawyer and U.S. v. Curtiss‐Wright that miscast and misinterpret the nature of executive power. The result is a missed opportunity to clarify key aspects of the legislative process and a muddying of the waters concerning the conduct of foreign affairs.