Separation of Powers

Latest in Separation of Powers

Readings

Alan Z. Rozenshtein on Digital Communications and Data Storage Companies as "Surveillance Intermediaries"

Alan Z. Rozenshtein, a former contributor to Lawfare who now works at DOJ, has a new article forthcoming in Stanford Law Review, "Surveillance Intermediaries," analyzing the role of corporate actors such as Apple, Google, Facebook, and others, that dominate digital communications and data storage, situated between government and targets of surveillance.

Executive Power

The Indeterminacy of Zivotofsky’s Exclusivity Analysis

Zivotofsky was expected to make a valuable contribution in the form of its analysis of the scope of exclusive executive power. But the Court failed to set forth a compelling or clear method of deciding exclusivity, and instead, it chose to rely on a variety of indeterminate sources. This approach is troubling for many reasons, not least because it opens the door to problematic “functional” analyses of the type exemplified by Zivotofsky itself.

Executive Power

Summary of the Court’s Opinion This Morning in Zivotofsky v. Kerry

This morning, the U.S. Supreme Court engaged deeply in Zivotofsky v. Kerry with significant questions implicating foreign relations law and the separation of powers, and—perhaps surprisingly—provided some illuminating answers. Lawfare has drafted a summary of the Court's 93-page opinion.

Executive Power

Why Zivotofsky Is a Significant Victory for the Executive Branch

The Supreme Court in Zivotofsky held that the President can disregard a statute that requires him to designate “Israel” on passports of U.S. citizens born in Jerusalem because the statute infringes on the President’s exclusive power to recognize foreign sovereigns. It is very unusual for the Court to give the President a victory in defiance of a congressional restriction, and it is literally unprecedented for the Court to do so in the foreign relations context, as the Chief Justice noted in the first sentence of his dissent.  This is one important feature of the case.

Executive Power

Zivotofsky v. Kerry is Out this Morning!

The decision in Zivotofsky v. Kerry, a blockbuster foreign policy-related Supreme Court case that many of us have been watching carefully, was just released: The DC Circuit is affirmed. The President holds the exclusive power to recognize foreign sovereigns, and the relevant statute compelling the Executive to write "Israel" on relevant passports impermissibly infringed on this exclusive authority to determine the status of Jerusalem.

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