Yesterday, the Supreme Court heard oral argument in a case involving the question of whether or not the son of American citizens who was born in Jerusalem can have the location of his place of birth on his U.S. Passport listed as “Jerusalem, Israel” as permitted by a 2002 law passed by Congress, or whether the Obama Administration can follow a policy that has been followed by several Presidents before it in only listing the place of birth for such citizens listed as “Jerusalem” given the fact that the United States does not formally recognize Israeli dominion over the city:
WASHINGTON — The Supreme Court on Monday considered the status of Jerusalem, which Solicitor General Donald B. Verrilli Jr. told the justices was “the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.”
The legal question for the justices was whether Congress was entitled in a 2002 law to order the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem if their parents asked.
The answer to that question involves the separation of powers and the competing roles of Congress and the president in the conduct of foreign affairs. But the justices seemed unusually alert to the real-world consequences of their eventual decision.
When Alyza D. Lewin, a lawyer for the couple challenging the law, said that a notation in a passport is a minor matter and not a statement on American foreign policy, Justice Elena Kagan said her assertion was poorly timed.
“Can I say that this seems a particularly unfortunate week to be making this kind of ‘oh, it’s no big deal’ argument?” Justice Kagan asked. “I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox.”
But Justice Antonin Scalia said the question for the court concerned constitutional law and not international relations. “If it is within Congress’s power,” he said, “what difference does it make whether it antagonizes foreign countries?”
“The fact that the State Department doesn’t like the fact that it makes thePalestinians angry is irrelevant,” he said.
The case, Zivotofsky v. Kerry, No. 13-628, was brought by the parents of Menachem B. Zivotofsky, who was born in 2002 not long after Congressenacted the law. Under the State Department’s policies, their son’s passport says that he was born in Jerusalem; they seek to have it say Israel.
President George W. Bush signed the law, part of an appropriations bill, but said he would not follow the Jerusalem provision because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.” The Obama administration also objects to the provision.
(…)
Justice Anthony M. Kennedy wondered whether passports could include a disclaimer saying the birthplace designation is not a declaration by the president “that Jerusalem is within the borders of the State of Israel.”
Ms. Lewin said that would be fine. But, she added in response to a question from Justice Kagan, Congress could instruct the president to delete the statement.
Justice Kagan said passports are diplomatic communications and suggested that Congress should not be allowed to dictate their content. To press the point, she asked Ms. Lewin whether Congress could require the secretary of state to send a letter to “every foreign minister” announcing that an American baby had been born in Israel every time one was born in Jerusalem.
To Justice Kagan’s apparent surprise, Ms. Lewin said that would be constitutional. Justice Kagan said the answer was “a little bit shocking.”
Chief Justice John G. Roberts Jr. stepped in to offer a distinction between the hypothetical letters and passports. “The passport is used primarily for purposes of identification,” he said, “and it’s only the letter that makes it something else.”
Ms. Lewin adopted the distinction. “Correct, Justice Roberts,” she said.
She said the main function of the passport notation was “to give individuals the right to self-identify as they choose that they were born in Israel.”
Under that view, Justice Kagan said, Congress had enacted “a very selective vanity plate law.”
Lyle Denniston has more analysis of the argument:
While several members of the Court seemed strongly inclined to rule that way, several other members were skeptical in a variety of ways, and did not hesitate to question that what U.S.-issued passports say may really not say anything about recognizing Israel’s claim, or that any potentially negative diplomatic effect of passport messages could be offset.
Justice Kennedy was the first to ask a question, moving in within a minute or so after Washington attorney began her argument in favor of allowing a twelve-year-old boy list Israel as his place of birth on his U.S. passport (he is a citizen) because he was born in Jerusalem.
After Lewin had opened with the argument that granting the boy’s wish would not “announce formal recognition of that location’s sovereign status,” Kennedy wondered if that could be made explicit in a public declaration by the president and secretary of State. Could they say, in issuing a passport, he asked, that noting Israel as the place of birth “is not an acknowledgment that Jerusalem” is within Israel’s sovereign claim?
Lewin readily agreed. That exchange caused Justice Elena Kagan (who would emerge as a strong defender of presidential prerogative) to wonder if Congress had the power to order the government to do just the contrary — that is, not make any such disclaimer on a passport. Lewin agreed that the lawmakers could do that, because that, too, would not a grant of recognition to Jerusalem as part of Israel.
Kagan, somewhat dismissively, referred to the law Congress passed in 2002 to try to provide official recognition for Jerusalem as part of Israel, as “a very selective ‘vanity plate’ law.”
It soon became clear that, along with Kagan, Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor were leaning noticeably (with Breyer most definitely) in favor of the executive branch’s power to decide the question, but that those four might not be able to easily garner a fifth vote to make a majority.
Clearly on the other side was Justice Antonin Scalia, who basically suggested that the Court need not pay any attention to what other countries thought the U.S. was saying by what it put on U.S. passports. He made significant efforts to keep Lewin from straying from her basic defense of Congress’s power to dictate passport policy, even if that directly contradicts what the State Department prefers. Scalia said that Lewin should be arguing that she “couldn’t care less” what other countries thought (which, of course, would be a rather brusque way of carrying on diplomacy).
Justice Samuel A. Alito, Jr., sought to make the point that neutrality in diplomacy was not an either-or proposition, suggesting that the U.S. — despite its official neutrality on Jerusalem’s status — accepts as official some actions that the government of Israel does. He noted that the boy involved in this case did get a birth certificate from the government of Israel after his birth in Jerusalem, and the U.S. must have recognized that as authentic when it gave him a passport.
Lewin was buffeted back and forth between the two emerging tendencies on the bench, and held steadily to her argument that the passport place-of-birth issue was not a significant problem for U.S. diplomacy, saying the government’s fears about this were “greatly exaggerated.” Kennedy tried to help her out with an easy question about why the government’s view should not trump hers; she handled it neatly, saying the conflict in claims to power was the way “separation of powers works” under the Constitution.
Chief Justice John G. Roberts, Jr., mostly stayed out of the argument until the Solicitor General took the lectern to defend the neutrality policy. Roberts then posed a series of sharp questions, testing whether the policy had been followed consistently and questioning why the government had “made such a big deal out of” the impact on diplomacy of the 2002 law.
He implied a deep inconsistency in President Bush’s having signed that measure into law even while issuing a signing statement condemning its effect on diplomacy. The government itself, the Chief Justice said, was partly responsible for the “big deal” now surrounding that statute. That, he said, “goes to the credibility” of the government in expressing such strong fears about how other nations might read enforcement of the law.
Verrilli sought to persuade the Court that it could decide the case without having to rule on the very broad question of which branch of government has the power, under the Constitution, to decide what other nations to officially recognize. All that the Court need decide in this case, the Solicitor General said, was that Congress “cannot use its power regarding passports to order the executive branch to issue a diplomatic communication that contradicts its policy and undermines its credibility.”
Justice Scalia tried to counter even that argument, insisting flatly that what a passport says about the holder’s place of birth “is not a communication.” Verrilli objected, saying that requiring the president to issue thousands of passports that identified Israel as the place of birth would mean thousands of times of contradiction of official neutrality.
Trying to remind the Court of the sensitivity the government sees in this case, the Solicitor General said that the status of Jerusalem was “the most vexing and volatile diplomatic issue this nation has faced” as it tried to work for peace in the Mideast. Other nations, he said, “scrutinize every word that comes out of the U.S. government,” and the “serious adverse effects” of the 2002 law would be to “question whether we can continue to be trusted” to be neutral.
This is actually the second time that this case was before the Supreme Court. The first time was two years ago when the case was titled Zivotofsky v. Clinton and, although there was much attention paid to the ultimate question that the Court will have to reach this time around regarding whether the authority to in some sense recognize Jerusalem as a city that is properly under Israeli sovereignty belongs to Congress or the President, the Court ended up deciding the case based solely on the question of whether or not the Zivotosky’s could test the Constitutionality of the 2002 statute and the State Department’s refusal to follow it. In its decision at that stage of the proceedings, the Court ruled that they could indeed challenge the statute and the State Department’s actions, so the matter was remanded to the lower courts for further proceedings. The case then resume its journey through the Court system. On remand, the D.C. Circuit Court of Appeals ruled that the 2002 law was an unconstitutional infringement on the President’s authority to set foreign policy, recognize Ambassadors, and recognize individual nations and their borders. The Zivotofsky’s then appealed the case to the Supreme Court yet again, and now we find ourselves back before the the Supreme Court, indeed back before the same Justices, arguing the ultimate issue in the case.
Although the Court ultimately decided the first round of this case on a narrow issue, when I wrote about the matter three years ago, I addressed the ultimate issue in the case in my post on the case, and I don’t see very much reason to change my opinion:
One could argue, it seems to me, that the power to recognize governments would be covered by the President’s plenary authority over the conduct of foreign affairs. However, the broader question really would be if the President doesn’t have the authority to recognize new governments, then who does? Placing that authority in the hands of Congress when no such power can be found in the confines of Article I makes no sense whatsoever, and the only other argument would be that nobody has such a power, which strikes me as pure nonsense. The fact that nobody in the Founding generation seemed to question Washington’s authority with respect to the recognition of Revolutionary France, argues strongly that it was accepted that this was part of the natural duties of the Chief Executive. In any event, while it’s an interesting academic argument, I find it hard to believe that the Supreme Court would rule that Congress has the authority to tell the President how to conduct foreign affairs.
While it doesn’t appear that the oral argument or, from what I’ve read of them the pleadings in the case, specifically address the Article I issue, that seems to me to be the ultimate issue. Outside of authority over borders and immigration, the Constitution gives Congress very little authority over the conduct of foreign policy beyond an oversight role. Most of that authority, as stated above, belongs to the President. If the Court were to decide that Congress has the authority to override Presidential decisions on foreign policy such as the decision to remain neutral on the current status of Jerusalem, which has been part of American foreign policy since the Nixon Administration, then what else could Congress do. Could it, for example, attempt to force the President to refuse to recognize the person appointed by the government in Beijing as the Ambassador of the nation known as China in favor of the resident of the government on Taiwan? Could it force the President to recognize a government-in-exile over the de facto and de jure government of a nation such as Iran or Syria? Could Congress have forced the State Department to take the position that Belfast is actually territory of the Republic of Ireland rather than the United Kingdom? These may seem like somewhat silly examples as we sit here today, but if Congress has the authority to force the State Department to issue documents saying that Jerusalem is a part of Israel notwithstanding official U.S. policy, a position that could have serious consequences for American interests in the Middle East, then there would seem to be no end to what Congress could do in this area. All of this notwithstanding the fact that the Constitution doesn’t really give Congress the authority to set foreign policy in this area.
When I wrote about this case the first time, I stated that I believed that the Court would likely side with the Administration over Congress over this, and my instincts tell me that this is still likely the case. The consequences for what could happen to the creation of foreign policy, and American credibility in that area around the world, strike me as being far too great for the Court to do otherwise notwithstanding the insistence of Justice Alito and others on the Court that the Court need not consider the implications of their decision on foreign policy generally. Of course, it’s possible that the Court may tried to find a way to split the baby on this issue, an option which Commentary’s Rick Richman discusses, but it’s hard to see how that’s possible. The 2002 law says what it says, and the Court doesn’t really have the authority to, say, put some kind of disclaimer on a passport as Justice Kennedy suggested. That would be something that Congress and the State Department would and should work out between themselves. So, I am going to anticipate that the Court will side with the Administration on this issue. The consequences otherwise would be far too disruptive to the President’s ability to conduct foreign policy.
Here’s the transcript of the oral argument for this interested:
