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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.

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