Sept. 4, 2015 SIGN IN | REGISTER

D.C. Court Adopts Old Judicial Error to Inflate Executive Power | Commentary

In accepting Sutherland’s interpretation of history, the D.C. Circuit Court on July 23, acknowledged it was relying on judicial dicta. It argued that although the Supreme Court has “not held that the President exclusively holds” the recognition power, an inferior court must consider careful language of the Supreme Court as authoritative, “even if technically dictum,” especially if the high court has “reiterated the same teaching.” (I have written about Sutherland’s misrepresentation and scholarly efforts to repudiate his position.)

At no time in Marshall’s lengthy public career did he promote exclusive presidential power in foreign affairs. Consider his decision in Little v. Barreme (1804): Congress had passed legislation during the quasi-war against France authorizing the president to seize vessels sailing to French ports. President Adams, meanwhile, issued a proclamation directing American ships to seize ships sailing to or from French ports.

Here the conflict was between a statute and a presidential proclamation. Speaking for a unanimous court, Marshall said the statute was superior to the proclamation.

In Zivotofsky, the D.C. Circuit Court not only deferred to the executive branch (Marshall did not) but held that an agency manual — the State Department’s Foreign Affairs Manual — was superior to a statute.

The court was manifestly careless in basing its decision on Sutherland’s dicta in Curtiss-Wright. No matter how often the court repeats an error, it remains an error and should not be used to decide constitutional law. An error, with repetition, cannot emerge as truth.

Louis Fisher served four decades at the Library of Congress as senior specialist in separation of powers at the Congressional Research Service and specialist in constitutional law at the Law Library.

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