At 10 a.m. Monday, the Supreme Court opens its next public session with a one-hour argument on a core constitutional dispute over the powers of Congress and the presidency, in the case of Zivotofsky v. Kerry.  Arguing for a family whose lawsuit is at the center of that controversy will be Alyza D. Lewin of the Washington, D.C., firm of Lewin & Lewin.  U.S. Solicitor General Donald B. Verrilli, Jr., will argue for Secretary of State John Kerry and for the White House.  Each advocate will have a half-hour of time.

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Background

In no area of national policy does the Supreme Court feel – and act – more like an outsider than in foreign relations. The Court is entirely content to leave that almost entirely to Congress and the presidency.  Next week, however, the Court will move — in a symbolic way — close to the boiling cauldron of the Mideast, where peace seems always to elude Israel and its Arab neighbors and war is never very far away.

And it does so in a case of a boy who has grown to age twelve immersed in a lawsuit of profound constitutional importance — a lawsuit that his parents filed when he was not yet a year old.  He and his family make their home in Israel, but there is no question that each is a U.S. citizen.

The issue before the Court in Zivotofsky v. Kerry is a deceptively simple one:  what should the passport of Menachem Binyamin Zivotofsky say about his place of birth?  He was born to U.S. citizen parents on October 17, 2002, in a hospital in Jerusalem, and he and his parents want his passport to show that he was born in Israel.  Instead, the document now reads “Jerusalem,” without identifying any nation.

The reason for that is also simple, again deceptively so:  the U.S. government has a firm and long-standing policy of neutrality about which nation, or nations, can claim Jerusalem as its own, and it believes that an official U.S. document that placed Jerusalem in Israel would undermine that policy.

The State Department once summarized the government’s view this way: “Any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”

What makes the Zivotofsky case constitutionally complicated is that word “recognizes.”  There are few issues about the Constitution that remain entirely unsettled, but one of them is this:  which branch of the federal government has the authority to decide when the U.S. government will officially accept, or “recognize,” the existence of a foreign nation?   Does that power belong to the President alone, or is it shared with Congress?

Answering those questions has fallen to the Supreme Court because the two political branches are completely at odds over the issue, but both have accepted that the Court will decide who is right as a constitutional matter.

Congress in 2002 passed a law ordering the State Department to allow U.S. citizens who were born in Jerusalem to record on their passports that Israel is their place of birth, but two presidents — George W. Bush and Barack Obama — have argued in response that the law encroaches deeply on presidential authority.

Each side claims that the Constitution itself supports its view.  Congress relies on a power over passports that it locates in its Article I authority to “regulate commerce with foreign nations” and to enact a “uniform rule of naturalization.”  The White House relies on the president’s Article II authority to “receive ambassadors and other public ministers” and to “make treaties,” arguing that those two powers give the chief executive “broad authority to conduct the nation’s foreign relations, including sole power to decide whether and with which states to establish diplomatic relations or negotiate a treaty.”

If the constitutional question itself were not of sufficient delicacy, the Supreme Court will examine it against background claims by the executive branch that enforcing the law passed by Congress could actually have violent repercussions in the Middle East, if there is a perceived shift in U.S. policy toward Israel’s claim to Jerusalem.

The Supreme Court could have avoided getting involved at all, as lower federal courts decided they would do at earlier stages of the lawsuit by the parents of Menachim Binyamin Zivotofsky on behalf of the boy.  The dispute, those courts found, was over “a political question,” the kind of dispute that has to be left to the political branches to work out.

When that case first reached the Supreme Court two years ago, the dispute focused only on whether the courts could rule on the constitutionality of the 2002 law.  The Court in May 2011 agreed to hear the case, but told the lawyers to also argue whether that law “impermissibly infringes the president’s power to recognize foreign sovereigns.”

When the Court reached its decision in March 2012, however, only one member — Justice Stephen G. Breyer — thought the controversy did involve a “political question” beyond the reach of the courts.

The Court returned the case to the U.S. Court of Appeals for the District of Columbia Circuit with a clear mandate to make the constitutional decision.  Chief Justice John G. Roberts, Jr., wrote: “To say that Zivotofsky’s claim presents issues the judiciary is competent to resolve is not to say that reaching a decision in this case is simple.”

However difficult it might be, however, the Court said that the issue did not require the courts to “define U.S. policy regarding the status of Jerusalem.”  Rather, the Roberts opinion said, it is only whether this child born in Jerusalem could take advantage of a federal law attempting to give his family permission to list Israel as his birthplace on his passport.  To answer that question would require that the courts pass only upon the constitutionality of a law passed by Congress — the kind of duty that a federal court has performed since 1803 and Marbury v. Madison.

The D.C. Circuit undertook that assignment, and in July last year struck down the law, concluding that the power to recognize another nation’s existence was a power held exclusively by the president, and declaring that the law impinged on that power unconstitutionally.  The appeals court said it was “not equipped to second-guess the Executive regarding the foreign policy consequences” of the 2002 law.

The family once more returned to the Supreme Court, and the Justices granted review in April, on the sole question of the validity of the law.

From what the Supreme Court said the last time around, the Justices apparently will make a major effort to avoid saying or deciding anything that will even hint at what the status of Jerusalem, in diplomacy or in law, is or should be.  It lacks the power, however, to dictate how others — especially in the region — would interpret what it decides, and that is why the White House and State Department remain fretful about this case.

Although an act of Congress and an important segment of Congress’s legislative power are at stake, Congress itself is not directly involved.  Thus, it will not have a lawyer arguing its position in the Court on Monday; that task will fall to the private lawyer for the Zivotofsky family, seeking to take advantage of the 2002 law.  At the briefing stage, however, the Senate filed an amicus brief and a bipartisan list of members of the House filed their own amicus brief.

Briefs on the merits

The Zivotofsky family’s merits brief provided a sturdy defense of congressional authority, in fact arguing that the national legislature holds superior power in the field of passport regulation.  But, the filing argued, if the Court feels it must reach the claim that the president has exclusive power of recognition, history shows that the power is a shared one, and that Congress actually has used its share of that power to pass laws that recognize foreign governments.

In the field of passport controls, the family brief contended, the State Department simply cannot act unless Congress has given it permission to act.  There are Supreme Court precedents, it added, that “sustained presidential authority over passports only when such authority is explicitly or implicitly authorized by Congress.  If Congress fails to empower the president or, as in this case, disapproves the State Department’s passport regulation, Congress prevails.”

Going back to early constitutional history on the foreign government recognition power, the Zivotofsky brief said treatises at the time recognized that Congress was superior on the recognition issue, and had the power to overturn presidential decisions on that issue.   Later analysis, the filing added, do not accept exclusive recognition power in the presidency.

The ultimate argument the family brief made is that, as in the famous Steel Seizure Case during President Harry Truman’s administration in 1952, when Congress and the president were directly at odds in a constitutional clash, this is another instance in which presidential power is at its “lowest ebb.”

The brief closed with a direct challenge to the State Department’s concern about what will happen if the 2002 law is upheld, and passports of those citizens born in Jerusalem will list Israel as the place of birth, if that is what the individual wishes.  There are now about 100,000 U.S. citizens, the brief said, whose passports note Israel as their birthplace because they were born there in cities other than Jerusalem.   If those born in Jerusalem are given the option of that same treatment, the brief said, that would only add about 50,000 individuals.

Moreover, the document contended, place-of-birth designation on passports is not a matter of implementing a foreign policy preference, but only to help serve to identify the person carrying the passport.  The brief said that the government’s repeated reference, in court briefs, to the sensitivity of the “status of Jerusalem” question have been “overblown.”   The Court itself, the Zivotofsky family contended, made clear in its prior ruling that this case simply is not about the status of Jerusalem, but only about this child’s right to take advantage of a law passed in his favor by Congress.

The merits brief on behalf of the State Department — and, implicitly, on behalf of the presidency — opened with the very same assertion that the family brief ridiculed.  “The status of Jerusalem,” the opening paragraph of the government document recited, “is one of the most sensitive flash points in the Arab-Israeli conflict.”

This was again an attempt to make the volatility of the overall geopolitical situation between Israel and its Arab neighbors, and the middleman role that the U.S. government seeks to play, a factors for the Justices to keep in mind even if they see it as a simpler question of the distribution of constitutional authority.

That opening thrust was also an attempt to bolster the view that presidents since President Truman have recognized the state of Israel immediately after it declared independent in 1948.  No president since Truman, the document stressed, has deviated from the policy of neutrality over Jerusalem’s status.

The government brief also sought to remind the Court that the place-of-birth issue is just one of the efforts that Congress has made to try to push the United States off of its neutrality stance.  Congress has tried several times, it noted, to force the government to move the American embassy in Israel from Tel Aviv to Jerusalem, and even sought in the 2002 law at issue in the Zivotofsky case to force the government to treat Jerusalem officially as the capital of the nation of Israel.

Those arguments, made for strategic purposes in the opening pages of the U.S. brief, are followed by the government’s constitutional argument — that is, that the authority to recognize foreign nations is a power held solely by the executive branch.   If, as the Supreme Court stressed as long ago as 1936, America “must speak with one voice in foreign affairs,” the recognition authority is vital, the brief contended.  The conduct of foreign policy, it argued, actually begins with recognition.

If Congress is now allowed to “force the Executive to convey to foreign sovereigns that — contrary to the president’s longstanding recognition position — that the United States has concluded that Israel exercises sovereignty over Jerusalem,” that will not only undermine the president’s recognition authority but also put the executive branch in a conflicting stance in its “sensitive diplomatic efforts” and undermine the president’s credibility on the world stage, the government brief asserted.

To the Zivotofsky family’s assertion that the impact of enforcing the 2002 law would have little effect on foreign relations, the government brief argued that this would lead to “anger and confusion among foreign entities” that could not be offset by mere verbal reaffirmations of a policy of neutrality.

Among the amici briefs filed at the merits stage, the most significant, of course, are those filed by the Senate and by forty-two members of the House — twenty-four Republicans and eighteen Democrats.   The Senate’s brief claimed that the Supreme Court has recognized that Congress has “plenary authority over passports,” and that, whatever power the executive branch exercises in this field, it does only with congressional authorization.  The House members’ filing contended that the position of the executive in this dispute is nothing less than an attempt to make Congress not a partner to the president, but “his minion.”

The Senate document sought to challenge directly the link that the government brief sought to establish between the recognition power and what passports say about birthplace.  The wording on a passport is simply not a form of “recognition,” but is solely an aspect of identifying the holder, the document asserted.  The House’s brief contended that the Court should “view with suspicion” this new claim by the executive of “exclusive authority” when what the Constitution mandates is shared public responsibility.

Three times as many of the other amici filings support the Zivotofsky family as line up with the State Department and White House.

The documents on the family side range from those from pro-Israel or Jewish faith organizations to scholars, Jewish lawyers and judges, the liberal advocacy organization Public Citizen, human rights organizations, Texas, and a well-known separation of powers specialist long associated with the Library of Congress, Louis Fisher.  The Fisher brief is devoted to counseling the Court not to continue to rely upon what he says is “erroneous dicta” about presidential power in foreign affairs in the Court’s opinion in the 1936 decision in United States v. Curtiss-Wright Export Corp.

Supporting the executive branch and its views on neutrality toward Jerusalem is the American-Arab Anti-Discrimination Committee, arguing the importance of Jerusalem to “the Abrahamic religions.”  A group named True Torah Jews, Inc., filed a brief contending that the 2002 law is part of a long-range campaign of Zionist expansionism, and a California lawyer, David Boyle, submitted a brief to tell the Court that he does not want his taxpayer money to support any State Department action that would declare “Israeli ownership of Jerusalem.”

After the Court’s argument on Monday, the Justices will deliberate in private, probably for several months, before reaching a decision.  That decision is likely to emerge sometime next year.

 

 

 

Posted in Zivotofsky v. Kerry, Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument preview: Court edges close to the Mideast cauldron, SCOTUSblog (Nov. 1, 2014, 12:02 AM), http://www.scotusblog.com/2014/11/argument-preview-court-edges-close-to-the-mideast-cauldron/