Zivotofsky v. Kerry (2015) is the most recent challenge to presidential prerogatives, and while the Supreme Court addresses the erroneous mistake espoused by Justice Sutherland in 1936, the Court ultimately fails to harness the unbridled powers of the Executive in the area of foreign affairs. The Court establishes a new standard for presidential ascendancy, which leaves the imperial president largely intact. This Article shows that a dynamic and fluid institutional relationship exists between the executive branch and the Court; the Court affects constitutional and political development by taking a leading role in interpreting presidential decision-making in the area of foreign affairs since 1936. Examining key cases and controversies in foreign policymaking, this Article exposes patterns of regime building by the Court, highlights feedback loops, and examines the long-term effect on presidential politics. Presidents are not bound by their position in the regime. In the area of foreign affairs, presidents, because of the dynamic nature of the Court, are unconstrained by the institutional context of their leadership efforts based on their predecessors.
Northern Illinois University Law Review
Fletcher, Kimberley L.
"Unilateral Executive Power ENSHRINED in Law: The Zivotofsky Court Stays the Course,"
Northern Illinois University Law Review: Vol. 37:
2, Article 5.
Kimberley L. Fletcher, Unilateral Executive Power ENSHRINED in Law: The Zivotofsky Court Stays the Course, 37 N. Ill. U. L. Rev. 307 (2017).