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.