It is cleverly disguised as a boring and technical case about jurisdictional issues and the legality of Section 214 of the Foreign Relations Authorization Act. But the case argued this morning at the Supreme Court, MBZ v Clinton, is one of the most critically important separation-of-powers cases the court has heard in years. What started as a simple passport dispute about a baby born in Jerusalem may well determine when Congress can boss the president around, when the president can boss Congress around, and whether and when the courts should be allowed to decide who’s the boss when it comes to international diplomacy.
Argument today explodes ideological boxes. Justice Antonin Scalia of the second half-hour argues tenaciously against Justice Scalia of the first half-hour. History is lovingly detailed, constitutional text carefully parsed, and when Donald Verrilli argues for his first time today as the new U.S. solicitor general, he offers what I can only describe as, well, Framer Porn. He lavishly refers to Washington, Jefferson, Madison, Hamilton, and Jay in a single, butterscotch-flavored sentence.
Since Israel was declared a state in 1948, the U.S. government has declined to recognize Jerusalem as the capital, deeming this a question to be resolved through diplomacy. The State Department insists that passports issued to American citizens born in Jerusalem say only “Jerusalem.” If you are, however, an American citizen born in Haifa, your passport would read, “Haifa, Israel.” In 2002, Congress passed a law that provided that "for purposes of the registration of birth … or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary (of State) shall, upon request … record the place of birth as Israel."
The law created political blowback for the Bush administration, implying as it did that under U.S. law, “Israel’s capital is Jerusalem.” Bush went so far as to attach a signing statement to the bill, indicating that the law had no legal force because Congress had no authority to “speak for the nation in international affairs.”
Three weeks after the law went into effect in September 2002, Menachem Zivotofsky was born in Jerusalem to American parents who sought to have “Jerusalem, Israel” written on his passport. Consular officials declined. Stalemate squared. Thus begins an epic battle over who decides U.S. foreign policy—the president or Congress.
Zivotofsky’s lawyer argues that Congress passed a law that is perfectly valid under a constitutional arrangement in which foreign-affairs powers are shared between Congress and the executive. Thirty-nine lawmakers across ideological lines file a brief in support. Lawyers for President Obama and Secretary of State Hillary Clinton say the statute impermissibly impinges on the exclusive power of the executive branch to recognize foreign sovereigns. They further argue that this is a matter in which courts should have no say, because what’s known as the “political question doctrine” bars judicial review in disputes between the “political branches.”
The court thus finds itself on an Escher escalator in which it has to first decide whether it may decide the question. This in turn requires it to identify the question. The federal appeals court, after several runs at the case, determined that the federal courts had no jurisdiction over this case. The Zivotofskys appealed.
Nathan Lewin represents the Zivotofskys and urges that this case be analyzed under Justice Robert Jackson’s famous formulation, from the Youngstown case, that “when the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb.”
So Justice Elena Kagan asks Lewin what power Congress was exercising when it enacted this statute. Lewin replies that Congress has power over “the issuance of passports under the immigration, naturalization and foreign commerce powers.” Justice Samuel Alito asks how exactly those passport powers are relevant to the title of the relevant section of the law—"United States Policy With Respect to Jerusalem as the Capital of Israel"? Justice Ruth Bader Ginsburg piles on. “You say foreign relations is a shared power,” she says. “If it is, why does Congress trump the executive?”
Justice Anthony Kennedy now wonders “what foreign relations determinations are for the president alone to make?” When Lewin suggests that presidents are in charge of “diplomatic communications,” Kennedy clarifies: “In other words, who gets the telegram?” He then asks whether any case or treatise supports “such a narrow, crabbed interpretation of the president's foreign affairs power.”
Justice Sonia Sotomayor jumps in: “What happens if there is a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem? Is the president free to stop listing Israel on the passport?” Lewin says no. Sotomayor retorts, “So you are hobbling the president with respect to situations that occur frequently—as happened in Egypt—sometimes overnight.” In case she hadn’t made herself perfectly clear, she adds: “What entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?”
Lewin replies that history shows that Congress has always had co-equal “recognition power” with the president, adding: “We have in our reply brief gone through the fact that from Presidents Monroe, Jackson, Taylor, Lincoln, and even at the time of President McKinley, Congress said: We have the authority to be recognized.”