WASHINGTON -- The Supreme Court had a taste of Middle East conflict on Monday morning, when the justices were urged to settle a spat over the status of Jerusalem -- at least as it appears in U.S. passports.
In 2002, Congress passed a bill that allowed Jerusalem-born American citizens to choose to have "Israel" listed as their country of origin on their passports. The American parents of Jerusalem-born Menachem Zivotofsky tried to take advantage of this law, but the U.S. Embassy in Tel Aviv refused, citing executive branch policy that the status of Jerusalem remains unresolved.
At Monday's oral argument in Zivotofsky v. Clinton, the parties pushed dueling narratives of American constitutional authority to establish which of the two elected branches should prevail. The lawyer for the Zivotofsky family, veteran Supreme Court advocate Nathan Lewin, argued that Congress acted under its power to regulate the content of passports and that the country-of-origin line in a passport "is purely an identification of the individual" rather than "an exercise of any foreign policy." Without any foreign policy implicated, Lewin argued, the president had to follow Congress' demands.
But the justices all appeared skeptical that a congressional statute entitled "United States Policy with respect to Jerusalem as the Capital of Israel" did not imply something about foreign policy. Seeing Lewin's unrealistic assertion and raising him, well, infinitely, Justice Sonia Sotomayor asked, "What happens if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem?"
Now, there will be no peace accord tomorrow, and if a peace accord is ever reached, Jerusalem may be divided or shared, but Israel will surely not relinquish all of it to a Palestinian state. Yet Sotomayor's question, like most other hypotheticals, defied reality to better crystallize the consequences of the Court's adopting a particular legal principle.
Specifically, she wanted to know if the president would be "free to stop listing Israel on the passport, or does he have to wait for Congress to change the law." Lewin responded that even when the executive branch's foreign policy prerogatives are affected, they still must give way to Congress' passport power. Sotomayor was troubled by that answer.
"Why isn't the better view," Sotomayor wondered, "that we let Congress express its approval and disapproval in the mechanism set up by the Constitution to do so," such as withholding approval of an ambassador or refusing to fund an embassy, rather than letting Congress infringe on “a presidential power that has been exercised virtually since the beginning of the country?"
Justice Antonin Scalia agreed that Congress "has an innumerable number of clubs with which to beat the executive." And if the issue could be settled between the other two branches through use of their own constitutional weapons, then, Scalia asked, "Why is it any of our business?"
Arguing for the Obama administration, Solicitor General Donald Verrilli presented an opposing narrative in which Congress had invaded the president's exclusive authority to recognize foreign nations, citing instances of American history dating back to the Washington administration to support his constitutional claims. Verrilli argued that counseled in favor of the justices doing as Scalia had suggested and staying out of the political thicket.
How is that different from saying, no, the Court can decide this case, and then the administration contends that the recognition of foreign nations "is exclusively committed to the president?" asked Chief Justice John Roberts. Not very different at all, said Verrilli, who at this point was enjoying a heads-I-win, tails-you-lose argument over whether or not the Court decided to reach the merits of the case.
That did not stop the Court from grilling Verrilli, too, on the consequences of the principle he was pushing. What if, the chief justice asked, Congress had said that "what you must put on the passport, if requested, is 'Israel (Disputed),'" thus acting in concert with, rather than contradicting, executive foreign policy?
"What if the recognition of a breakaway province of a foreign country by the United States will clearly provoke a war with that country?" asked Scalia. "Would Congress have the power to decree that the president shall not recognize that breakaway province?"
Just as Lewin maintained his absolutist stance on Congress' ability to pursue its passport power even if that disrupted foreign policy, Verrilli stood firm that Congress has no constitutional ability to keep a "foolish president," in Scalia's words, from triggering all-out war.
Ultimately, the justices showed little interest in punting the case as a political question that can’t be decided by the Court when, in Sotomayor's words, "the outcome is that the president is saying that he's entitled to ignore 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 [would be] basically saying we are not going to determine whether this law is constitutional or unconstitutional," Sotomayor told Verrilli.
"That doesn't sound to me like abstaining because it's a political question," Scalia agreed. "It seems to me like deciding the case," he continued, suggesting that this dispute was one where the Court had to use the clubs constitutionally entrusted to it.