The Washington Post, 11/3/2014
The Supreme Court seemed deeply split Monday about whether Congress may allow Americans born in Jerusalem to claim “Israel” as their birthplace on passports, since every president since Harry Truman has resisted taking sides on whether Israel or Palestine controls the holy city.
Solicitor General Donald B. Verrilli Jr. warned the justices during an energetic hour of questioning that the world hangs on every official U.S. government action on the status of Jerusalem, which he described as “the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.”
Although presidents both liberal and conservative have held that any decisions on the status of Jerusalem’s sovereignty be settled through negotiations between parties in the Middle East, the case at hand appeared to divide the court by ideology.
Liberal members of the court seemed to agree with the Obama administration — and President George W. Bush before him — that the 2002 passport law embraces the interpretation that Jerusalem belongs to Israel and therefore should be seen as an unconstitutional intrusion on the executive branch’s role in setting the nation’s foreign policy.
Conservatives seemed to endorse the view that Congress was simply enabling “self-identification” of those born to Americans in the city, and that it does not affect the recognition issue.
It appeared that the outcome would be determined by Justice Anthony M. Kennedy. He looked for a compromise — some version of a passport disclaimer by the president — but also indicated that he believes the court must yield to the executive branch in matters of foreign affairs.
“Why doesn’t the government trump?” Kennedy asked Alyza D. Lewin, attorney for 12-year-old Menachem Zivotofsky and his parents, who have waged a legal battle the boy’s whole life to have Israel listed on his passport.
There are about 50,000 people like Zivotofsky, and some of them want the option Congress passed in 2002. Bush signed the legislation to which the provision was attached. But he announced that he would not enforce it, saying it violated the U.S. policy of neutrality, and the Obama administration has taken the same position.
Lewin said the executive branch’s objections were misplaced.
“What goes on a passport as a place of birth is not tantamount to recognizing foreign sovereignty,” she said.
Justice Antonin Scalia was her most ardent supporter, at times taking over her argument. If Congress has the power to declare war on foreign countries, he said, surely it has a say in passports.
“But your main position is this is not recognition; it just has an effect on the State Department’s desire to make nice with the Palestinians, and your position is Congress has no compulsion to follow that, assuming it can’t recognize,” Scalia told Lewin.
“That is correct,” Lewin replied.
Justice Samuel A. Alito Jr. said the U.S. government already recognizes the reality that Israel has controlled most of the city since 1967. He said there was no dispute about Israel’s right to charge an American who has committed a crime in the city, or to issue a birth certificate to someone born there.
But the court’s liberal members said Lewin downplayed the importance of the passport change.
“They’re asking the government to lie,” said Justice Sonia Sotomayor. Justice Stephen G. Breyer said the court should follow the State Department’s lead: “I’m a judge. I’m not a foreign affairs expert.” Justice Ruth Bader Ginsburg said the passport provision cannot be separated from the rest of the bill.
“The thrust of the whole provision (is) that Congress has said we think Jerusalem is the capital of Israel,” she said.
Justice Elena Kagan said if the provision was simply about self-identification, it would be a “very selective vanity-plate law.” But passports are a form of communication from the secretary of state to another country, she said.
“What we usually say about diplomatic communication is that whatever Congress’s other foreign affairs powers are, the power of diplomatic communication belongs to the president and the president alone; that in that realm we only speak with one voice,” Kagan said.
Chief Justice John G. Roberts Jr. told Verrilli that if the provision was such a “big deal,” Bush should not have signed the law. He said that it was the resistance of the executive branch that has elevated the dispute and created a “self-fulfilling prophecy that it’s going to be such a huge deal.”
Alito agreed that Verrilli was exaggerating the stakes of how the world would see the court’s action.
“Our decision isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel,” he said.
But Kagan said Jerusalem was a “tinderbox” because of renewed tensions over access to one of the city’s holiest sites, which Jews call the Temple Mount and Muslims know as the Noble Sanctuary.
“Can I say that this seems a particularly unfortunate week to be making this kind of, ‘oh, it’s no big deal’ argument,” Kagan said. “I mean, history suggests that everything is a big deal with respect to the status of Jerusalem.”
The case is Zivotofsky v. Kerry.
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