By the end of the oral argument yesterday in Zivotofsky v. Clinton, it was not clear which way the Supreme Court would go. But it was clear that, in the course of considering the validity of the 2002 law giving Americans born in Jerusalem the right to have “Israel” on their passports as their place of birth, the Justices were grappling with some of the most basic questions involving judicial, congressional and presidential power under the Constitution.
Congress clearly has the power to legislate regarding passports, because it has repeatedly done so — including in 1994, when it passed a law giving Americans born in Taiwan the right to have “Taiwan” on their passports as their place of birth, notwithstanding official U.S. foreign policy as articulated by the Executive Branch — that there is only one China (the People’s Republic) and that Taiwan is not a separate country. President Clinton signed the law and implemented it, while making it clear it represented no change in the U.S. “One China” policy.
President Bush signed the 2002 law regarding Jerusalem, but refused to implement it on grounds it contradicted U.S. policy that sovereignty over Jerusalem is an issue to be decided in the future and the law “interfered with the president’s constitutional authority to conduct the nation’s foreign affairs” — a refusal continued by President Obama even though during the 2008 campaign he criticized Bush for his practice of signing but not implementing legislation.
In yesterday’s argument, Nathan Lewin, the lawyer for Zivotofsky, did not get further than three sentences before he was interrupted by Justice Kagan, who asked “what power is Congress exercising here?” Lewin answered it was Congress’s power over passports, which it has exercised for more than 150 years. Justice Alito noted the title of the section in question was “United States Policy with Respect to Jerusalem as the Capital of Israel,” implicitly suggesting Congress was trying to set American foreign policy. Justice Ginsburg asked “why does Congress trump the executive” in that regard.
Justice Kennedy asked what foreign relations determinations were for the President alone to make, and Lewin answered that “Foreign relations determinations are not left to the President alone.” Justice Sotomayor asked what would happen “if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem?” She wanted to know if the President would be free to stop listing Israel on the passport or whether he would have to wait for Congress to change the law. Lewin answered the President would have to wait, which Sotomayor characterized as “hobbling” the President.
Lewin asserted that the alleged foreign policy concerns in the President’s policy were trivial:
All that happens with this statute is that 50,000 American citizens have the same passport as 100,000 other American citizens who were born in Tel Aviv or Haifa. It just says ‘Israel.’ It doesn’t say ‘Jerusalem, Israel.’ It just says ‘Israel.’ And the State Department says that’s justified because Arab countries or Palestinians may be upset if they misperceive [that as changing official U.S. policy regarding Jerusalem].
Chief Justice Roberts responded that “So we are supposed to decide whether or not the executive is correct in saying that it’s a significant problem … we know foreign policy better; we don’t think it’s going to be a big deal.” Lewin answered that Congress had decided that saying “Israel” alone did not present a foreign policy issue, and that where Congress did recognize a foreign policy issue — such as another provision in the law mandating placement of the American embassy in Jerusalem — Congress provided the President could waive that requirement if he found it affected national security.
Justice Kagan said the statute still seemed a Congressional declaration of foreign policy, but Lewin disagreed: it is “a means of permitting self-identification by an American citizen who says: My birth in Jerusalem, indeed in West Jerusalem, which has always been recognized as a part of Israel, I want to call — I want my passport to say ‘Israel’” — in the same way an American citizen born in Taiwan can. Zivotofsky was born in the western portion of Jerusalem, which has always been part of Israel and which even the Palestinian Authority does not purport to dispute.
Justice Scalia said “a personal identification choice can also have significant foreign policy implications, can it not?” and suggested that what the State Department was saying is “that to allow this particular personal identification may antagonize some foreign nations that we don’t want to antagonize.” But Lewin argued the statute was not one “designed to create some political brouhaha or make a foreign policy statement”:
It’s a statute that frankly fits in with what the State Department does in accommodating to individual passport holders. The State Department says if you are a Palestinian or an Arab and you are born in Haifa and you don’t like seeing “Israel” in your passport, we will allow you to eliminate “Israel” from your passport.
Justice Kagan suggested Lewin would have a better argument if the statute said you could pick “Jerusalem,” or “Israel,” or “Palestine,” but that saying you could pick “Israel” seemed a statement of foreign policy, rather than one of individual choice. This produced the lightest moment of the morning, involving the youngest and oldest justices on the Court:
Mr. Lewin: … The statute does say that the individual passport holder can choose to say Israel or keep it as Jerusalem, and if he’s born before 1948 he can say Palestine. So it is an individual choice.
Justice Kagan: Well, you have to be very old to say Palestine.
Justice Ginsburg: Not that old. [Laughter in the courtroom].
Justice Ginsburg was born on March 15, 1933, more than 15 years before the modern state of Israel was born.