Divining Joseph’s Dreams: The Founders, Executive Power in Foreign Affairs, and the “Lowest Ebb”
Justice Jackson’s Youngstown categories cemented an expansive view of the Executive’s foreign affairs powers, beyond the scope that the Founder’s intended, into Supreme Court jurisprudence. Justice Jackson, in crafting his categories of presidential power, assumed that the Executive has a broad grant of foreign affairs authority because he assumed the Article II phrase “the executive power” implied some substantive powers beyond the power to execute the law. Justice Jackson’s mistaken thesis when framing the Youngstown categories led to the Court’s holding in Zivotofsky II – the first time that the Court used the “lowest ebb” category to override an act of Congress. Considering Zivotofsky, this Note calls for the Youngstown decision to be narrowed to conform to the original meaning of the Article II phrase “the executive power” as argued by Professor Julian Mortenson. Mortenson rightly concludes that by only vesting the executive power, the Founders expressly limited the Executive’s authority to the powers enumerated in Article II and did not grant him ‘residual’ foreign affairs powers. Furthermore, by applying a Montesquieuian framework, it is evident that the Founders not only did not grant residual foreign affairs powers to the Executive but also would have considered any grants or use of residual foreign affairs powers by the Executive as unconstitutional.
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