The Curious Case Of Zivotofsky v. Kerry

Since 1948, the US has declined to formally recognize Israel’s sovereignty over Jerusalem, maintaining that the final status of the city remains unsettled as long as the Israeli-Palestinian conflict does. But in 2002, Congress passed a law regarding “United States policy with respect to Jerusalem as the capital of Israel”, which, among other provisions, permitted US citizens born in Jerusalem to have their place of birth listed as “Israel” on their passports. State Department policy is to list only “Jerusalem” without designating a country. Bush signed the legislation but issued a signing statement protesting that it interfered with his authority to conduct foreign policy.

Enter Menachem Zivotofsky, the plaintiff in Zivotofsky v. Kerry.

When Zivotofsky was born in Jerusalem shortly after the 2002 law was enacted, his parents requested “Israel” as the place of birth on his passport. The State Department denied the request, so the Zivotofskys went to court, arguing that State had violated the law. The government countered that the law infringed the president’s constitutional power to decide whether to recognize foreign nations. The DC Circuit first dismissed the case as a “political question” that the courts could not decide; SCOTUS reversed that decision and sent the case back to the circuit court, which ruled in the government’s favor. The family appealed, and the case is now before the Supremes for a second time. Amy Howe reviews Monday’s oral arguments, in which “lawyers for the two sides painted very different pictures of the potential effects of the law”:

Representing the United States, Solicitor General Don Verrilli told the Justices that the “question of the status of Jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.”  He cautioned the Court that upholding the statute would undermine the president’s credibility in the Middle East peace process, and he reminded the Justices that the passage of the law had prompted “mass demonstrations in Jerusalem, thousands of people in the streets, some turning violent.”

Alyza Lewin, representing Zivotofsky, downplayed the government’s warnings about the possibly dire international consequences of the law, dismissing them as “grossly exaggerated.” Eventually, she suggested, listing Israel as the birthplace on the passports of U.S. citizens born in Jerusalem would “become a non-issue.”  And Congress has the power to require the State Department to do so, she maintained, pursuant to its power to regulate passports.

Though he suspects that the amici curiae care more about whether the US recognizes Israeli sovereignty over Jerusalem than about the separation-of-powers question at the heart of the case, Noah Feldman doesn’t buy Lewin’s argument:

Congress has indeed passed laws authorizing issuance of passports, and it’s not obvious that the world would shake if a handful of passports read “Israel” instead of Jerusalem. The problem is that the argument undercuts itself. After all, why is Zivotofsky bringing the case in the first place if not to make it appear that the U.S. has now recognized Jerusalem as part of Israel? Why, for that matter, did Congress pass the law if not to send that message?

In the real world, if the court held for Zivotofsky, it’s true that sophisticated observers would understand that Congress, not the president, had set the policy — but that would precisely reflect a conflict between the different branches of government, a circumstance that the Constitution for the most part has been interpreted to prohibit. Of course, it’s impossible for a tripartite government truly to speak with one voice on foreign affairs. But it’s definitely a goal toward which a rational constitutional system should aspire.

Jack Goldsmith favors the government’s position and urges the court to rule that Congress never had the authority to enact the 2002 law in the first place:

The beauty of ruling against petitioner on the basis of a lack of congressional power for the statute is that it allows the Court to avoid the super-hard problem of defining the contours of exclusive presidential power based on the vague and uncertain textual materials in Article II.  In other words, the Court can resolve the case, and mark off a narrow presidential power to determine what country should be designated on a passport, without reaching or discussing Article II (at least not discussing it very much), by focusing instead on the more precise terms of Article I.

And for you legal realists out there, this way of resolving the case satisfies two larger imperatives, somewhat in tension, that will certainly be in the back of the minds of many Justices: (1) not wanting to cross swords with the Executive on an important Middle East policy at a very fraught time of Middle East relations; and (2) not wanting to grant the president a large or vague exclusive presidential power related to recognition.

But Yishai Schwartz sees the case differently – as an opportunity to reassert Congress’s authority in international affairs:

Congressional supremacy is the basis of our entire constitutional system, and congressional oversight our best protection against tyranny. To be sure, a powerful executive, capable of acting against sudden threats and during periods of Congressional dysfunction (like now), is essential. Someone must fill the void. But allowing presidential discretion to become presidential supremacy undermines basic principles of democracy. In a democracy, after all, it is the people that are sovereign. It would be bizarre if their representatives, tasked with confirming treaties, regulating international trade and declaring war, had to bow to the president in smaller matters of foreign policy.

Dahlia Lithwick contends “that the worst-situated government agents to decide Mideast peace policies and whether what’s written on passports perhaps implicates Mideast peace policies, are the nine justices of the U.S. Supreme Court”:

Nobody is quite sure, after argument, which side will cobble together five votes, or for what. One thing that is certain is that even if the court wants to try to look neutral on the subject, it will have taken sides, in a massively consequential fashion. And while it’s always fascinating to hear the nine Justices bat about matters of foreign policy “Taiwan!” “Crimea!” “Barcelona!” the way they might do at a dinner party, it’s clear that dinner party knowledge is pretty much what they have to offer. And by deciding who the decider will be, at least on matters of foreign policy, even the neutral justices, aren’t.

Garrett Epps hopes the court rules clearly and decisively, noting that separation-of-powers cases can have surprisingly broad consequences:

Consider that a minor dispute over the sale of machine guns to Bolivia is still quoted today. That 1936 case, United States v. Curtiss-Wright Export Corp., provided the opportunity for Justice George Sutherland to proclaim (though the issue was not even present in the case) the “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”—language that presidents have relied on since in issues more important than Bolivian arms sales, most notably George W. Bush’s claim of unilateral authority to attack foreign nations without congressional authorization.