How a 'Trivial' Decision Could Land the Supreme Court in Foreign-Policy Hell

The Court could duck, or decide to allow "Jerusalem, Israel" to appear as a birthplace on passports -- or blaze a new trail in foreign affairs law

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Secretary of State Hillary Clinton, Speaker of the House John Boehner, and Chief Justice John Roberts walk into a bar.

You know the punch line: "Is this some kind of joke?" Not today, because there's a serious question for one of the three -- "What should we write on this passport?"

But which one should you ask?

That's the question raised by Zivotofsky v. Clinton, argued yesterday in the Supreme Court. The stakes in the case seem small -- whether the words "Israel" or "Jerusalem" should be written in the "Place of Birth" blank on a child's passport. But constitutional cases often wrap important issues in seemingly trivial guise.

United States foreign policy for the past sixty years has been not to recognize the sovereignty of any one country over the contested city of Jerusalem. Initially, the city was divided; but Israel captured it all in 1967 and shortly afterwards proclaimed it as the "undivided capital" of the country. Meanwhile, the international community, including the United States, insists that the "final status" of Jerusalem can only be determined as part of a comprehensive settlement of the Arab-Israeli dispute.

American supporters of Israel have long demanded that the U.S. recognize Jerusalem as the capital. In 2002, Congress added language to the State Department's appropriation bill urging the U.S. to move its embassy and directing the State Department, which issues U.S. passports, to allow American citizens born in Jerusalem to choose between "Jerusalem" and "Israel" in the "Place of Birth" blank. When the appropriations bill reached his desk, President George W. Bush signed it, but issued a "signing statement" that said that the Jerusalem section "impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch." Since then, the State Department has ignored it.

Menachem Zivotofsky, Jerusalem-born, turned 9 on October 17. His American-born parents are suing to require the State Department to write "Israel" for his place of birth. The U.S. Court of Appeals for the District of Columbia dismissed the case. Two of the three judges held that the case is a "political question," meaning that the two political branches should work it out and that courts have no role to play. The third judge, Senior Judge Harry T. Edwards, said that deciding such questions was clearly an executive power.

Article II, the sketchy outline of executive power, says that the president "shall receive ambassadors and other public ministers "; the only other mention of foreign affairs is the grant of power to make treaties "by and with the advice and consent of the Senate." Beginning with George Washington, presidents have construed the "receive ambassadors" clause as a grant of power to determine which governments are recognized and what the nation's policy toward them shall be. By the 20th Century, it had become hornbook law that the president is "the sole organ of the Nation in its external relations."

Congress's claims authority over passports, drawing from an inferential power (initially shared with the states) to prohibit the "migration or importation of... persons" (meaning slaves) into the U.S.; an exclusive power to "establish an uniform rule of naturalization"; and the power to "regulate commerce with foreign nations." Though Congress now authorizes the issuance of passports, the federal government in the early republic issued them with no statutory authority.

Menachem Zivotofsky's lawyers argue that the "place of birth" designation of a passport is for identification only, and doesn't implicate the "recognition power." In addition, his brief argues, the United States allows persons born in Israel proper who object to that listing on their passport to have only the city of birth listed; it is unfair, they imply, to discriminate against Americans born in Jerusalem who do want "Israel" on their passports.

They don't deny that placing "Israel" on a passport might cause some adverse reaction from Arab states. Arab countries are very sensitive to the word "Israel" on passports; Americans who travel widely in the Middle East are routinely issued two passports, because anyone presenting a passport stamped by the Israelis will be denied entry to a number of Arab countries. Nor is it just Arab countries who scrutinize passport entries: the Chinese government once threatened to refuse entry visas to Americans whose passports showed them as born in "Taiwan," because that might imply recognition of "two Chinas." (That dispute was smoothed over, but illustrates the potential.)

These arguments don't seem very strong. Discrimination is the essence of foreign policy, and asking the Supreme Court to hold that a specific act of policy will have what Zivotofsky calls "negligible or trivial impact" on American foreign policy seems like an invitation to go where even self-confident Justices fear to tread.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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