At Dorf on Law, Michael Dorf: Zivotofsky May Be Remembered as Limiting Exclusive Presidential Power. From the conclusion:
… [O]ver the long run, I suspect that Zivotofsky will come to be seen as a relatively narrow ruling. Even Justice Jackson in Steel Seizure recognized that there could be cases in which an Act of Congress invalidly interferes with the president's exclusive powers. He described presidential power in case of such a conflict as at its "lowest ebb." He did not say truly exclusive presidential power is non-existent.
Indeed, if I am right, then just as Hamdi v. Rumsfeld is now routinely cited for Justice O'Connor's sweeping line that "a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens," even though the Hamdi Court allowed military detention of citizens, so too, Zivotofsky's repudiation of the broad language of Curtiss-Wright will come to overshadow the fact that the Court ends up invalidating an Act of Congress as unduly interfering with an exclusive presidential power.
Agreed.
It hurts, though, that earlier in the post Professor Dorf says that Justice Thomas' invocation of the residual theory of executive foreign affairs power is something close to Curtiss-Wright's extraconstitutional and exclusive presidential power foreign affairs power. The central point of the first three chapters of The Constitution's Text in Foreign Affairs is that they are radically different theories.
Meanwhile, Josh Blackman notes 5 Questions from Zivotofsky that Justice Thomas raised but were “not necessary to resolve.”
Posted at 6:31 AM