Can President Obama and Secretary of State Hillary Clinton ignore the law entitling Americans to say on their passport that Jerusalem is part of Israel? The Supreme Court will now decide. If a person born in Jerusalem gets an American passport, that passport will list “Jerusalem” as the nation of birth, instead of “Israel” (or Palestine). In 2003, Congress passed a law enabling Americans having a child in Jerusalem to list Israel, implicitly taking sides in the Israeli-Palestinian debate. President George W. Bush signed the bill into law.
Menachem Zivotofsky was born in Jerusalem and his parents requested Israel on his passport. The White House and State Department objected, saying this law infringed upon the president’s power to control foreign policy.
The U.S. Court of Appeals for the D.C. Circuit dismissed the case on appeal under the political question doctrine, part of which says that courts should not referee certain types of disputes between the elected branches of the federal government (Congress and the president).
Nevertheless, in Zivotofsky v. Clinton, the Supreme Court faces two questions: Does the political question doctrine allow courts to decide this case? If so, who wins?
The parties disagreed on which constitutional provisions are at stake. Citing the fact that passports are issued for immigration identification purposes, Zivotofsky’s lawyer Nathan Lewin argued that what a passport says is entirely within Congress’ exclusive power over immigration policy.
But Solicitor General Don Verrilli argued to the contrary that this is part of the president’s power to receive ambassadors (and thereby recognize foreign governments).
Justice Anthony Kennedy asked what foreign-policy actions a president can take without Congress. Lewin offered a crabbed view, saying the president can send diplomatic communications.
Justice Ruth Bader Ginsburg asked what would happen if Congress passed a law saying the passport must label Jerusalem as the capital of Israel, instead of Tel Aviv.
When Lewin answered that Congress could, Justice Antonin Scalia balked, saying Lewin was arguing Congress was superior in this foreign matter, not coequal with the president.
Scalia then suggested that the political question doctrine applies here, saying that if both political branches have some authority in this situation, “I frankly would not be inclined to intervene. … Why don’t we just let them go at it?”
Verrilli also faced tough questioning. He asserted that the president has exclusive power to determine foreign policy, and this includes the contents of passports if he decides they impair foreign relations.
Justice Stephen Breyer pushed back, saying, “But there never has been a case or suggestion that the president can act where Congress has legislated to the contrary.”
Chief Justice John Roberts then asked what would happen if Congress allowed the passport to say, “Israel (disputed),” mirroring U.S. policy. Verrilli said no.
Roberts followed up, asking if the passport included a written disclaimer that each person chooses the contents, and so the passport endorses no policy position. “Same problem,” Verrilli answered.
“Really?” the chief responded incredulously, suggesting that the administration was pushing its argument too far.
Scalia followed up, asking if Congress would have any role if the president insisted on listing a country that Congress knew would cause a war. Verrilli responded that a president would be more careful than that.
The courtroom burst into laughter when Scalia clarified, “No, no. We have a foolish president … contrary to our entire history.” Verrilli still said it was the president’s decision, not Congress’.
This case is not a clean right-left split. There’s no reason to believe that the outcome will be a 5 to 4 vote, with Kennedy casting the deciding vote. Both sides claimed superior power, and the court objected to both. The court might opt for the political question route, but it’s not clear which way the case will go.
A decision is expected early next year.
Examiner legal contributor Ken Klukowski is a fellow with the American Civil Rights Union and on faculty with Liberty University School of Law.
