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

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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.

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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