Supreme Court Dispatches

Passport Originalism

How the status of Jerusalem got dragged into a critical Supreme Court case about separation of powers.

Who in the U.S. government has the legal power to recognize Jerusalem as the capital of Israel?

Photo by Darren Whiteside/Reuters

It is cleverly disguised as a boring and technical case about jurisdictional issues and the legality of Section 214 of the Foreign Relations Authorization Act. But the case argued this morning at the Supreme Court, MBZ v Clinton, is one of the most critically important separation-of-powers cases the court has heard in years. What started as a simple passport dispute about a baby born in Jerusalem may well determine when Congress can boss the president around, when the president can boss Congress around, and whether and when the courts should be allowed to decide who’s the boss when it comes to international diplomacy.

Argument today explodes ideological boxes. Justice Antonin Scalia of the second half-hour argues tenaciously against Justice Scalia of the first half-hour. History is lovingly detailed, constitutional text carefully parsed, and when Donald Verrilli argues for his first time today as the new U.S. solicitor general, he offers what I can only describe as, well, Framer Porn. He lavishly refers to Washington, Jefferson, Madison, Hamilton, and Jay in a single, butterscotch-flavored sentence.

Since Israel was declared a state in 1948, the U.S. government has declined to recognize Jerusalem as the capital, deeming this a question to be resolved through diplomacy. The State Department insists that passports issued to American citizens born in Jerusalem say only “Jerusalem.” If you are, however, an American citizen born in Haifa, your passport would read, “Haifa, Israel.” In 2002, Congress passed a law that provided that “for purposes of the registration of birth … or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary (of State) shall, upon request … record the place of birth as Israel.”

The law created political blowback for the Bush administration, implying as it did that under U.S. law, “Israel’s capital is Jerusalem.” Bush went so far as to attach a signing statement to the bill, indicating that the law had no legal force because Congress had no authority to “speak for the nation in international affairs.”

So, stalemate.

Three weeks after the law went into effect in September 2002, Menachem Zivotofsky was born in Jerusalem to American parents who sought to have “Jerusalem, Israel” written on his passport. Consular officials declined. Stalemate squared. Thus begins an epic battle over who decides U.S. foreign policy—the president or Congress.

Zivotofsky’s lawyer argues that Congress passed a law that is perfectly valid under a constitutional arrangement in which foreign-affairs powers are shared between Congress and the executive. Thirty-nine lawmakers across ideological lines file a brief in support. Lawyers for President Obama and Secretary of State Hillary Clinton say the statute impermissibly impinges on the exclusive power of the executive branch to recognize foreign sovereigns. They further argue that this is a matter in which courts should have no say, because what’s known as the “political question doctrine” bars judicial review in disputes between the “political branches.”

The court thus finds itself on an Escher escalator in which it has to first decide whether it may decide the question. This in turn requires it to identify the question. The federal appeals court, after several runs at the case, determined that the federal courts had no jurisdiction over this case. The Zivotofskys appealed.

Nathan Lewin represents the Zivotofskys and urges that this case be analyzed under Justice Robert Jackson’s famous formulation, from the Youngstown case, that “when the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb.”

So Justice Elena Kagan asks Lewin what power Congress was exercising when it enacted this statute. Lewin replies that Congress has power over “the issuance of passports under the immigration, naturalization and foreign commerce powers.” Justice Samuel Alito asks how exactly those passport powers are relevant to the title of the relevant section of the law—“United States Policy With Respect to Jerusalem as the Capital of Israel”? Justice Ruth Bader Ginsburg piles on. “You say foreign relations is a shared power,” she says. “If it is, why does Congress trump the executive?”

Justice Anthony Kennedy now wonders “what foreign relations determinations are for the president alone to make?” When Lewin suggests that presidents are in charge of “diplomatic communications,” Kennedy clarifies: “In other words, who gets the telegram?” He then asks whether any case or treatise supports “such a narrow, crabbed interpretation of the president’s foreign affairs power.”

Justice Sonia Sotomayor jumps in: “What happens if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem? Is the president free to stop listing Israel on the passport?” Lewin says no. Sotomayor retorts, “So you are hobbling the president with respect to situations that occur frequently—as happened in Egypt—sometimes overnight.” In case she hadn’t made herself perfectly clear, she adds: “What entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?”

Lewin replies that history shows that Congress has always had co-equal “recognition power” with the president, adding: “We have in our reply brief gone through the fact that from Presidents Monroe, Jackson, Taylor, Lincoln, and even at the time of President McKinley, Congress said: We have the authority to be recognized.”

Scalia splashes down: “It seems to me you are not arguing for co-equal congressional power; you are arguing for a superior congressional power. You are saying whatever Congress says, the president has to comply with. … And if they both have authority in the field and are exercising it in different fashions, I frankly would not be inclined to intervene.” Sitting back, Scalia ponders: “Why don’t we just, you know, let them go at it? Why is it any of our business which is the better foreign policy position?”

When Lewin tries to argue that Congress only passed a measly little passport statute, Kagan slaps back: “I’m sorry. It’s a passport statute that seems to have nothing to do with the immigration functions that passport statutes usually serve. It seems to have everything to do with Congress’s declaration of a foreign policy, as opposed to Congress’ exercise of power relating to immigration control.” She tells Lewin, “I think you would have a better argument if this statute said if you were born in Jerusalem you can pick anything you want in your passport; you can pick Jerusalem, you can pick Israel or you can pick Palestine. But the statute in fact doesn’t say that. It says you can pick Israel.”

Lewin disagrees: “The statute does say that the individual passport holder can choose to say Israel or can keep it as Jerusalem, and if he’s born before 1948 he can say Palestine. So it is an individual choice.” Kagan grins: “Well, you have to be very old to say Palestine.”

To which Ginsburg retorts: “Not all that old.”

If you’re thinking it sounds like Lewin lost himself nine votes there, just wait. Because for the next 30 minutes, Verrilli will appear to lose nine votes as well. When Verrilli stands up to represent the State Department, he says that the Constitution commits recognition power “exclusively to the executive, and neither a court nor the Congress can override that judgment.”

Chief Justice Roberts stops him to note that Lewin documented contrary history “where from the beginning at least through the McKinley administration, the two branches acted as if they had co-equal authority.” So Verrilli throws down a Framers full-house in response: “I would like to point out that in the Washington administration the president confronted the question with respect to whether to recognize the revolutionary government of France. President Washington consulted with his Cabinet, and of course his Cabinet included Jefferson and Madison and Hamilton and Jay. And they decided that this was a power that was exclusive to the president.”

Even Justice Clarence Thomas blinks rapidly.

Justice Stephen Breyer notes that “there never has been a case or a suggestion that the president can act where Congress has legislated to the contrary,” and Verrilli will spend the rest of the morning trying to answer that.

Both Ginsburg and Roberts ask Verrilli to explain the difference between deciding this case for the Obama administration and deciding that it has no jurisdiction to decide “political questions” at all. The result would be the same: Administration wins. Kennedy goes further and suggests that the political questions doctrine doesn’t help Verrilli at all, explaining: “You know, it’s always awkward for us to tell counsel what’s in their best interest, but it does seem to me that your position would be much stronger if you said there is jurisdiction and the president wins.”

Breyer suggests that when it comes to delicate messages about foreign policy, “the best thing to do is avoid multifarious pronouncements by various departments of government on one question, and judges, stay out of it. Let them work it out by themselves.” And because this is precisely what Scalia said less than 30 minutes earlier, Scalia leaps in to contradict his former self: “You have a dispute between the two branches, and where that happens, I find it hard to say, well, you know, we can’t get into it … It seems to me we have to resolve that question.” Then Scalia explains why deciding not to decide this case itself constitutes a decision on the merits: “If we just abstain, if we just say it’s none of our business … let you two guys fight it out. That’s not what you are asking us to do, is it? … You are asking us to decide the question that it is exclusively the presidential power.”

In his rebuttal Lewin re-emphasizes that this is really just a passport case that would affect maybe 50,000 people who want “Jerusalem, Israel” on their travel documents: “The question is, what goes on the passport, and may somebody self-identify? A passport is not today considered a diplomatic statement; it’s an identification of a person in order to enable him to travel abroad.”

It’s hard for him to argue that the passport issue is not hugely symbolic, since that is precisely why Congress enacted the statute (see, again the title of the relevant section of the act). Conversely, what the administration is seeking is the power to ignore any congressional enactment that intrudes on what the president decides to call his foreign policy powers. Sotomayor explains why that is also slightly terrifying: “If we call this a political question and don’t address the merits, the outcome is that the president is saying that he’s entitled to ignore the Congress. I don’t know what kind of message that sends, but it’s a little unsettling that a court charged with enforcing the laws passed by Congress are basically saying we are not going to determine whether this law is constitutional or unconstitutional.”

The court appears poised to decide the substantive question in this case and to support the president’s expansive view of executive authority. Even if the Framers didn’t write that notion into the Constitution, they appear to have whispered it into the ear of history. In this case, that may be sufficient.