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

In its amicus brief, a group of members of Congress ask the Court to ignore the "political question" issue and redefine the foreign relations power, holding, in particular, that Congress has "plenary authority over passports and documentation of birth abroad."

From a transcript of Monday's argument, it seems to me that the Congressional argument is the only one that has a chance of winning. And that chance seems slim. What the Court would have to hold is that Congress can determine any instance of American foreign policy by statute. As Justice Scalia asked Nathan Lewin, Zivotofsky's lawyer, "It seems to me you are not arguing for a co-equal congressional power, you are arguing for a superior congressional power." Lewin was reluctant to confront this aspect of the case. He argued that what Zivotofsky was asking was "trivial ... all that happens with this statute is the 50,000 American citizens have the same passport as 100,000 other American citizens who were born in Tel Aviv or Haifa." They need that because "they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification."

Chief Justice Roberts asked, "So we are supposed to decide whether or not the executive is correct in saying that it's a significant problem. And he says that, but we know foreign policy better; we don't think it's a big deal." Could a decision for Zivotofsky really be cabined to "trivial" matters or issues of self-respect? What, Justice Scalia asked, if Congress voted to allow passport applicants to list their birthplace as "Israel, the only democracy in the Middle East"? Lewin said Congress would have the power to do that.

Solicitor General Donald Verilli, arguing for the government, told the Court that specifying place of birth was "an exercise of the Executive's exclusive recognition power." After some back and forth about what the text actually says (spoiler: the word "exclusive" isn't in there, nor is "recognition"), Verilli qualified: "If the reception clause were not in the Constitution -- but we had the same history that we have now and the same functional considerations about the need for it being in the control of the executive," the government would still argue that the power was exclusive to the president.

The case presents the Court with four options, three of them seemingly unappetizing. Second, it could hold that the case presents a "political question," which federal courts do not have jurisdiction to hear. Unappetizing. Justice Sotomayor said to Verilli, "If we call this a political question and don't address the merits, the outcome is that the president is saying 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 constitution or unconstitutional." Perhaps recognizing this problem, the government did not push the "political question" hard either in its brief or in the argument.

Next, the Court could hold that Congress can direct the executive in passport matters as long as the direction would have "trivial" effects on foreign policy. This might invite dozens of foreign policy disputes -- about other matters claimed to be "trivial" -- to slither into the Court's in-basket. Unappetizing. Finally, as Lewin finally conceded on rebuttal, "this case can be a vehicle for an authoritative clarification of the roles of Congress and the president in conducting the nation's foreign affairs" -- with a victory for his client presumably creating a fairly radical departure in the way foreign policy is handled. If that prospect is appetizing the Court, that hunger doesn't appear in the transcript.

Finally, the Court could resolve the constitutional issue and hold that the power to designate the contents of a passport belongs to the executive. Of the four, that seems least bad, both from a constitutional point of view and from the point of view of the Court's struggle to avoid being pulled into day-to-day executive decisions. That doesn't mean five Justices won't decide to take a leap into a new world of foreign affairs law. But it would be quite a leap, and the Justices seem to be looking carefully before making it.

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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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