In a largely overlooked passage in his concurrence in Zivotofsky v. Kerry, 576 U.S. 1 (2015), Justice Thomas made a concession. Thomas stated that how “the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution” is a “difficult separation-of-powers question” that “I need not opine on.” Id. at 55 (Thomas, J., concurring).1 Implicit in Justice Thomas’s statement is something remarkable.
