The President, Congress, and Menachem Zivotofsky’s Passport
By the time Lewin finished, six Justices had asked penetrating questions suggesting doubts about his position. Only Justice Thomas (who never asks questions during oral arguments) and Justice Breyer had not spoken.
But then the administration’s lawyer, Solicitor General Donald Berrilli, Jr., got up.
Justice Breyer noted that “there never has been a case or a suggestion that the President can act where Congress has legislated to the contrary.” Justice Ginsburg noted that Congress had passed its statute regarding Taiwan and the President had implemented it: “So Congress thought it had the authority … and the President acquiesced.” Justice Alito noted that the administration was effectively arguing that the President had “unreviewable authority with respect to anything the President thinks has a bearing on the question of recognition [of foreign sovereignty].”
Justice Kagan asked if the statute would be constitutional if it included a provision that said “The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel’s sovereignty over Jerusalem.” Verrilli argued that the statute would still be unconstitutional.
Chief Justice Roberts asked if the statute would be constitutional if it had reflected the administration’s policy by providing that “What you must put on the passport, if requested is ‘Israel,’ parentheses, ‘Disputed,’ close parentheses, which would seem to take care of your objection that people are going to look at this and draw a false conclusion.” But Verilli said the statute would still be unconstitutional, which produced this colloquy:
Chief Justice Roberts: So what if Congress says [in the statute]: This person has the choice of whether or not to put Jerusalem or Israel. This doesn’t affect whether the United States recognizes Jerusalem as part of Israel or not; it’s just his choice. Same problem?
Gen. Verrilli: Same problem, Mr. Chief Justice.
Chief Justice Roberts: Really? I thought your argument was that someone’s going to look at that and say: That offends me, that you are calling this part of Israel. That was the foreign policy significance. And I tried to give you a hypothetical in which nobody could reasonably draw that conclusion, and you say still, same thing.
It seemed to dawn on the Justices that the administration was making a breathtaking claim of unfettered presidential power, extending so far as to determine individual passport designations even in hypothetical situations where no conceivable foreign policy issue existed. Justice Scalia noted that:
Our cases say repeatedly that the President is the sole instrument of the United States for the conduct of foreign policy, but to be the sole instrument and to determine the foreign policy are two quite different things. To say he’s the sole instrument simply means that congressmen traveling abroad, or globetrotting ex-presidents, nobody except the President of the United States pronounces the foreign policy. But it doesn’t necessarily mean that the President determines everything in foreign policy. He’s the instrument, but there is certainly room – in those many cases for saying that Congress can say … what the country’s instrument is supposed to do.
Justice Kagan asked what “textural basis” there was for the argument that the President has exclusive power here, since the only possible provision in the Constitution was the one giving the president the power to receive ambassadors, “which arguably was meant to give the President a purely ministerial function.” She asked if Verrilli would be making his exclusive power argument even if that provision were not in the Constitution — in other words even if there were no textual provision in the Constitution at all that might arguably give the President such power — and Verrilli answered yes.
On rebuttal, Lewin suggested the case gave the Justices a choice of making it (1) “a vehicle for an authoritative clarification of the roles of Congress and the President in conducting the nation’s foreign affairs” or (2) recognizing “narrower grounds for enforcing [the statute] that do not implicate separation of powers issues:”
It’s a passport law; it’s within Congress’s constitutional authority on the cases that have recognized that the President may not deny or restrict passports without the express or implied approval of Congress. … The Court merely has to look at the record in this case in which the State Department has said, look, we’re concerned that there may be a misperception [by the Palestinians] of what this means – a misperception. And it’s extraordinary that on the basis of the fact that there is an alleged misperception, American citizens who have been authorized by Congress to say – identify themselves on their passports as being born in Israel, will now find that statute null and void.
Courts generally prefer to decide cases on the narrowest grounds possible. Lewin’s closing argument may have given the Court a way of doing that – winning the case for his client while postponing any grand confrontation between Congress and the President over who controls foreign policy.
Ironically, this whole case could have been avoided if either President Bush or President Obama had simply done what President Clinton did with respect to Taiwan: faithfully execute the law, while making clear it did not change U.S. foreign policy as articulated by the Executive Branch. Better yet, the case could have been avoided if the President had simply chosen to recognize that the city that has been the capital of Israel for 61 years is the capital of Israel. Whatever past policy has been, and whoever has the authority to decide it, it’s time.
The United States has, so far, not recognized Jerusalem as the capital of Israel even though the Israeli government has designated it as the capital since 1949. On the other hand, Congress passed Public Law 104-45 in November 1998 requiring the USG to move the US Embassy to Jerusalem, which would be de facto if not de jure recognition of the status of Jerusalem as Israel’s capital. Bill Clinton allowed the bill to become law without his signature and immediately used the “opt-out” provision of the law. Each president since has done the same.
Spinoneone — in the 2002 law, the same section giving U.S. citizens born in Jerusalem the right, on request, to have “Israel” put on their passports as their place of birth also mandated that the U.S. embassy be moved to western Jerusalem. But the latter provision contained the “opt-out” for the president if he determined there was a national security risk. No “opt-out” was provided with respect to the right of an individual to have “Israel” put on his own passport if he wanted.
How would they react if someone born in Washington, DC was not allowed to list “The United States of America” as their nation of birth?
Denying a nation’s self-proclaimed capital is a “diplomatic” way of denying the legitimacy of a nation.
Right; Leaving Israel isolated is standard operating procedure for the Obama “administration”. Appeasement of the Arabs by this “administration” and it’s cronies is also SOP. Jew bashing is current “foreign policy”.
Now, if Jerusalem had a golf course and an opulent resort, you could put Jerusalem as your birthplace no problem.
“President Bush signed the 2002 law regarding Jerusalem, but refused to implement it…” In other words, less than a year after 9/11 and Bush still had his nose firmly implanted in the House of Saud’s a***ole. The Oil Ticks have bought our government.
Very interesting article.
This business of pretending the long-standing capital of Israel is not in Israel is getting downright silly.
The fact that these arguments encompass the right of an individual to have a certain “state” placed on their passport is ridiculous.
They are putting fake trees in a sparse forest. The basic issue is the Presidential and Congressional scope of administration. But, I do understand the problem of comprehension for a couple of the new “DENSA” appointees to the Court.
If I was born in Leningrad in 1980, are they going to tell me that I cannot use Leningrad, and that I now have to use St. Petersburg? The passports purpose is to verify legitimate information found in a background check, by a recognized, legitimate, trusted, government on the documented individual.
Yea; I know. We’re afraid of the Russians, but not the Jews.
“THE COURT RAISES MORE QUESTIONS THAN IT ANSWERS”.
Seventy three year old Richard Joseph Goldstone must be either a terminally-ill man, an extremely-befuddled man, or both. Seriously sick people tend to try to make amends before they meet their Maker; confused people often mistake fantasy for reality.
Goldstone, a former and eminent South African judge, made his mark on the bench by undermining South Africa’s apartheid laws with his rulings advancing the rights of that nation’s majority blacks, thereby leading to the end of discrimination by minority whites. He subsequently served as chief prosecutor for the U.N.’s trials of war criminals in Yugoslavia and Rwanda.
He is evidently an avid proponent of majority rule as well as a sincere advocate for the oppressed. Sometimes.
His advocacy came under fire from the world’s Jewish community and especially from Israel when Goldstone, a non-religious Jew, personally investigated the 3-week Israeli Gaza war of 2008-2009 and the United Nations issued the Goldstone Report, officially titled, “Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict.”
The final version of that scathing report, issued in April 2009, charged Israel’s IDF with a systematic, official policy of inflicting undue punishment on civilians in Gaza and violating international humanitarian and human rights law. It also deleted most references to Hamas atrocities and focused on the disproportionality of Israel’s retaliation.
The investigation and report had been commisioned by the U.N. Human Rights Council, a fact that made it suspect from the outset. The U.N. is notorious for its anti-Semitism and the UNHRC includes China, Cuba, and Pakistan among its 47 members but, still, Goldstone was a Jew and his religion added a significant credibility factor.
Not unexpectedly, he was reviled in Israel and elsewhere by Israel supporters as a wayward jurist suffering from a “moral inversion” who “preserved his judicial reputation while perpetrating a blood libel against Israel” and with worse epithets, all because he had dared expose Israeli war crimes against humanity, in Gaza just as he had exposed comparable crimes in Yugoslavia and Rwanda and the evil of apartheid in South Africa.
In effect, Goldstone was characterized as a Jew-hating Jew.
Fast forward to April of this year when the jurist had an epiphany, a religious attack, a re-examination of conscience, a re-evaluation of perceptions. Call it what you will, Goldstone retracted and contradicted much of what he had witnessed on his fact-finding mission to Gaza just two years earlier.
See his retraction, . . .
(Read more at http://www.genelalor.com/blog1/?p=5942.)