Jerusalem passport case divides Court: In Plain English

We often think of the Supreme Court as the arbiter of distinctly national disputes for example, whether the Affordable Care Act can require all of us to obtain health insurance or pay a penalty, or whether public universities can consider race as one factor in their admissions process. But yesterday the Court waded into a dispute that is playing out on a global stage: whether a U.S. citizen born in Jerusalem can choose to have his place of birth listed as Israel on his passport. The answer, according to the U.S. government, could have a potentially explosive impact on the U.S.s role in the Middle East peace process, and possibly even on the peace process itself. Lets talk about Zivotofsky v. Kerry and yesterdays argument in Plain English.

Since 1948, the United States has declined to recognize any country as having sovereignty over the holy city of Jerusalem. But in 2002, Congress passed a law that instructed the Secretary of State, upon request, to list the birthplace of a U.S. citizen born in Jerusalem as Israel on his passport. President George W. Bush signed the law, but at the same time he issued a statement known as a signing statement in which he protested that the law interferes with the Presidents constitutional authority to conduct the Nations foreign affairs and to supervise the . . . executive branch.

The child at the heart of todays case, Menachem Zivotofsky, was born in Jerusalem in 2002 to U.S.-citizen parents. When his parents applied for a passport for him, they asked consistent with the then-new law — to have his place of birth be designated as Israel on his passport. When the State Department refused, the family brought this lawsuit, which has already been to the Supreme Court once before. Two years ago, the Justices decided that the lawsuit could continue; it was not, they concluded, the kind of political question that courts should leave to the president and Congress.

The case went back to the lower court, which ruled in the governments favor. It agreed with the government that only the president has the power to recognize foreign countries. And the law ran afoul of that power, it concluded, because it tried to change the governments long-standing policy of not recognizing any country as having sovereignty over Jerusalem.

Zivotofsky asked the Supreme Court to weigh in, and it agreed to do so earlier this year. At yesterdays oral argument, lawyers for the two sides painted very different pictures of the potential effects of the law. Representing the United States, Solicitor General Don Verrilli told the Justices that the question of the status of Jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades. He cautioned the Court that upholding the statute would undermine the presidents credibility in the Middle East peace process, and he reminded the Justices that the passage of the law had prompted mass demonstrations in Jerusalem, thousands of people in the streets, some turning violent.

Alyza Lewin, representing Zivotofsky, downplayed the governments warnings about the possibly dire international consequences of the law, dismissing them as grossly exaggerated. Eventually, she suggested, listing Israel as the birthplace on the passports of U.S. citizens born in Jerusalem would become a non-issue. And Congress has the power to require the State Department to do so, she maintained, pursuant to its power to regulate passports. That exercise of the passport power here does not infringe on the presidents power to recognize foreign countries, she contended, because a passport simply identifies someone as a U.S. citizen for purposes of overseas travel. Identifying Menachem Zivotofsky on his passport as having been born in Israel does not, she argued, amount to a formal recognition by the U.S. government of Israels sovereignty over Jerusalem.

Lewins argument drew criticism from the Courts more liberal members. Justice Ruth Bader Ginsburg countered that the whole purpose of the law was to declare that Jerusalem is the capital of Israel. Justice Elena Kagan echoed that question later in the oral argument, asking Lewin how to characterize the statute if it isnt a recognition statute. Lewins response — that the statute was created to give individuals the right to self-identify as someone born in Israel prompted Kagan to label it a very selective vanity plate law. Justice Sonia Sotomayor also appeared skeptical of Lewins argument, describing the law as an effort by Congress to direct the Secretary of State to say something that isnt true: that someone born in Jerusalem is actually born in Israel.

During his thirty minutes of argument time, Verrilli repeatedly emphasized that the fundamental problem with the law is that in conflict with the presidents exclusive power to recognize foreign countries — it purports to order the president to issue diplomatic communications (passports) that contradict the official policy of the U.S. on Jerusalem. But several of the Courts more conservative Justices were clearly unconvinced. Justice Samuel Alito questioned whether the law really would make much of a difference. After all, he observed, the United States has already recognized that Israel has control over Jerusalem in other ways for example, the Israeli government issued a birth certificate to Zivotofsky, which the U.S. government accepted as part of the documentation needed to get a passport. Justice Antonin Scalia did not mince words, telling Verrilli that, if the law falls within Congresss power to regulate passports, what difference does it make whether it antagonizes foreign countries? And Chief Justice John Roberts asked Verrilli why, if recording Zivotofskys place of birth as Israel were really such a problem, President George W. Bush signed the law at all.

Justice Anthony Kennedy, who often proves to be the deciding vote in closely divided cases, could play that role again here, and he was harder to read. On the one hand, he suggested to Lewin that, if the Court were to defer to the governments contention that listing Israel as the birthplace of U.S. citizens born in Jerusalem amounted to recognition of Jerusalem as the capital of Israel, the governments position would trump the law. On the other hand, he asked Verrilli why the State Department couldnt comply with the law and list Israel as the birthplace of U.S. citizens like Zivotofsky, but at the same time put a disclaimer inside the passport to make clear that the designation did not reflect the position of the State Department or an indication that Israel . . . had jurisdiction over Jerusalem.

After an hour of oral argument, the case appeared to be a close one. It ended on a somber note, with Justice Kagan noting that history suggests that everything is a big deal with respect to the status of Jerusalem. And right now, she continued, Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so . . . everything matters, doesnt it? Whether Kagans words will ultimately sway at least four other Justices, and the extent to which its ruling will ultimately matter, remains to be seen.