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The President, Congress, and Menachem Zivotofsky’s Passport

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.

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.