Ryan Scoville (Marquette University Law School) has posted Compelled Diplomacy in Zivotofsky v. Kerry (NYU Journal of Law & Liberty, Vol. 9, 2014) on SSRN. Here is the abstract:
To the parties and lower courts, Zivotofsky v. Kerry has been a dispute primarily about the nature of the President's power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II?
This essay explores the possibility that Section 214(d) of the Foreign Relations Authorization Act of 2003 is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and recognition is beside the point.
I agree. Although I would call it an issue under Article I.
UPDATE — RELATED: Martin Lederman has made some similar arguments at Just Security, previously noted (here and here) – Zivotofsky: Questions about Article I and Executive diplomatic speech and The core of Zivotofsky: of passports, property, commerce, recognition . . . and, ultimately, diplomacy.
Posted at 1:25 PM