Divining Joseph’s Dreams:* the Founders, Executive Power in Foreign Affairs, and the lowest Ebb

Divining Joseph’s Dreams:

*

The Founders,

Executive Power in Foreign Affairs, and the

“Lowest Ebb”

RODOLFO MARTINEZ-DON**

ABSTRACT

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 exec-

utive 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.

* Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring)

(“Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions,

must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret

for Pharaoh.”).

** Georgetown Law, J.D. 2020; The George Washington University, B.A. 2017, History &

Philosophy. This note is dedicated to my paternal grandparents, Rodolfo Martinez and Guillermina

Martinez Ni~

no de Rivera, and my maternal grandparents, Erasmo Don Zabala and Maria Yolanda

Segarra Don. I owe everything to the sacrif‌ices they made and the legacy they created. I would like to

thank Dean William Treanor and Dean John Mikhail for inspiring the topic of this note during their

Constitutional Law Seminar. Moreover, I would like to thank Michael McQueeney and Alexander

Nowakowski for their insight and feedback. The contributions of the Georgetown Journal of Law &

Public Policy editors and staff have been invaluable. Above all, I would like to thank Sydney, my

brother Emiliano, my sister Carlota, and my parents Rodolfo and Yolanda for their patience and support.

339

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340

I. EXECUTIVE AUTHORITY AND FOREIGN AFFAIRS: EXECUTIVE POWER

V. ROYAL PREROGATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

A. The Inferiority of the Power of the President to that of the

British King . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344

1. Foreign Affairs and the Original Meaning of the Executive

Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345

2. Debates on Foreign Affairs Powers and the Nature of

Executive Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347

B. Separation of Powers: The Executive may not be both Judge

and Legislator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350

C. The Royal Residuum Theory: Confusing the Executive with a

Monarch. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352

II. YOUNGSTOWN AND ZIVOTOFSKY: MISCONCEPTIONS OF EXECUTIVE

POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354

A. Divining Joseph’s Dreams: Youngstown and Executive Power 355

B. Zivotofsky: The Lowest Ebb, the Royal Prerogative, and

Despotism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360

INTRODUCTION

The Article II phrase “the executive power”

1

has long been claimed to vest the

president with a bundle of national security and foreign affairs powers. Professor

Julian Mortenson’s recent law review article, Article II Vests the Executive

Power, Not the Royal Prerogative, argues that rather than vest the President with

additional powers, the executive power limits the president to a “single discrete,

and potent authority: the power to execute the law.”

2

The executive power is thus

an “empty vessel until there [are] laws or instructions that [need] executing.”

3

Royal Residuum Thesis scholars have confused the executive power, the power

to execute the law, with the royal prerogative, the bundle of substantive powers

1. U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United

States of America”).

2. Julian Davis Mortenson, Article II Vests the Executive Power, Not the Royal Prerogative, 119

COLUM. L. REV. 1169, 1169 (2019).

3. Id.

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