The status of Jerusalem as a potential capital for both Israel and
the Palestinians remains unresolved while long-stalled peace talks show
no sign of resuming anytime soon.
The two policies came to a head when the State Department denied
Zivotofsky's parents' request to have Israel listed as his birthplace.
They sued, contending the State Department violated the 2002 law.
Aside from the separation-of-powers issue, the justices also have to
decide whether it is the court's place to make a ruling. The Obama
administration contends that the dispute is a political question the
executive branch and Congress need to settle on their own, and lower
courts have already dismissed the case on those grounds.
Much of the questioning at Monday's hearing focused on which branch
had the authority to recognize foreign nations. U.S. Solicitor General
Donald Verrilli Jr. contended that the receipt of ambassadors clause in
the Constitution, as well as history and practicality, show that the
executive alone has the power to recognize other states.
"The Constitution commits that power exclusively to the executive,
and neither a court nor the Congress can override that judgment," he
But Nathan Lewin, representing the Zivotofskys, challenged the
administration's interpretation of the Constitution and said history
shows that Congress has often shared with the president a recognition
power, making the 2002 law constitutional. He portrayed the case as a
very specific dispute that would not have larger foreign policy
"This is one of these very rare situations where Congress has said
what the president has done, and what the Department of State has done,
is simply wrong," Lewin said. "It does not hobble the president in
terms of future foreign policy."
There was also disagreement on which branch can monitor what is
listed in passports, and even on what a passport is. Lewin said
passports are pieces of personal identification and Congress has
authority over them as part of its immigration oversight, but that drew
a challenge from Justice Elena Kagan.
"It's a passport statute that seems to have nothing to do with the
immigration functions that passport statutes usually serve," Kagan
said. "It seems to have everything to do with Congress's declaration of
a foreign policy, as opposed to Congress's exercise of power relating
to immigration control."
Verrilli argued that passports can also delineate official American
positions on issues. The administration has warned that allowing Israel
to replace Jerusalem as the place of birth on passports would have
broader foreign policy implications.
As the justices grilled the attorneys, they also raised the issue of
whether the debate was a political question that the court could not
"If they both have authority in the field and they are exercising it
in different fashions, I frankly would not be inclined to intervene,"
Justice Antonin Scalia said. "I would let them conduct the usual
inter-branch hand wrestling that goes on all the time, which probably
means that if Congress cares enough, Congress will win."
But Justice Sonia Sotomayor questioned what would happen if the Court did not make a decision.
"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," said Sotomayor, who was President Obama's first
nominee to the court. "I don't know what kind of message that sends,
but it's a little unsettling."
A decision in the case, M.B.Z. v. Clinton, is expected next year.