Zivitofsky v. Kerry has been variously styled as a proxy war for U.S. foreign policy toward Israel, an intimate question about the right to express one’s values through one’s passport, and a massive smack down between the congressional and executive branches over who gets to direct foreign affairs. All of these are true. But after arguments this morning at the Supreme Court, it’s also clear that this is one of those Rorschach Test cases into which everyone seems inclined to import a whole lot of their other stuff. Hate the president? Support Israel? Hate Congress? Support the Palestinians? Like passports? You’ll find a way to get exercised about Zivitofsky. Which is one of the reasons that the real lesson of the day is that neutrality is never neutral—especially with ostensibly neutral decision makers.
Given the fraught question of who has sovereignty over Jerusalem—a city that is sacred to Muslims, Christians, and Jews—U.S. policy is to show strict neutrality. That policy, in place since the Truman era, means that the State Department requires that American citizens born in Jerusalem have only “Jerusalem,” and not “Jerusalem, Israel” or “Israel” on their U.S. passports. “For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport,” the State Department’s Foreign Affairs Manual states. “Do not write Israel, Jordan, or West Bank for a person born within the current municipal borders of Jerusalem.” Congress doesn’t agree with that posture, and in 2002 it passed a law that, among other things, allows Jerusalem-born applicants for U.S. passports to record their place of birth as “Israel” if they so request. President Bush signed that law but attached a signing statement declining to enforce the passport provision because it “impermissibly interferes with the President’s authority to conduct the Nation’s foreign affairs.” Barack Obama similarly contends that the provision is unconstitutional.
Menachem Zivotofsky, now 12, was born in Jerusalem to American-born parents in 2002. Citing the new law, the parents sought to have his U.S. passport read “Jerusalem, Israel.” The State Department issued a passport listing only Jerusalem. They sued. They have been up and down the litigation food chain ever since then, including a former run at the Supreme Court in 2011, which kicked the case back to the federal appeals courts that had been attempting to duck the whole mess as a “political question” not appropriately adjudicated in the courts. Last year the D.C. Circuit Court of Appeals held that the passport provision unconstitutionally infringed on the president’s authority to recognize the sovereignty of foreign states. The Zivitofskys are back at the high court this morning with a second bite at the question of which branch sets foreign policy, and how much the other branch gets to muck around in it.
The Constitution gives the president broad “recognition” powers, but it evidently grants Congress some authority to regulate passports. It’s all very murky. The courts offer little in the way of guidance. And perhaps we can all agree, given their own inability to agree on much of anything, that the worst-situated government agents to decide Mideast peace policies and whether what’s written on passports perhaps implicates Mideast peace policies, are the nine justices of the U.S. Supreme Court. It may also be helpful to understand that someone forgot to change the clocks at the high court when we fell back yesterday. Which means that the grand old brass clocks that sit at the front and back of the ceremonial courtroom read, respectively, 6:30 and 11 when we enter the room, 7 and noon 10 minutes later, and continue to be cranked around but somehow never fixed throughout argument. Watching the arms of the two clocks flying around in the manner of the Twilight Zone opening, with a seven-hour difference between the two (perhaps reflecting the time difference to Jerusalem?) plus Chief Justice John Roberts’ stern warning to oral advocates that they should not be guided by the clocks, gives the morning a sort of out-of-time, out-of-place quality that is exacerbated when Justice Stephen Breyer has to be moved out of Justice Sonia Sotomayor’s spot, which he accidentally occupies.
The Zivotofskys are represented by Nathan Lewin, who argued the case last time it was at the Supreme Court, and his daughter Alyza. When she steps up to counsel table, her dad hugs her. In an interview last week she sought to downplay the impact the case could have on foreign relations, framing it instead as a simple story of one family’s profound connection with Israel. But of course the courtroom teems with Israel supporters, executive power supporters, Senate junkies, and lovers of originalism. Sometimes the personal is also the political.
Alyza Lewin opens by contending that “How an American is identified in his or her passport … does not amount to formal recognition by the United States of that designated location’s sovereign status.” Justice Anthony Kennedy quickly interrupts to float a strange compromise that would allow the State Department to print a sort of disclaimer on the passport indicating that it says “Israel” at the holder’s request and that “This designation is neither an acknowledgment nor a declaration by the Department of State or the President of the United States that Jerusalem is within the borders of the State of Israel.” He will repeat this Solomonic solution twice more. Since the court otherwise appears to be evenly split, this may be the Solomonic solution we read about in May.
Lewin concedes to Kennedy that the State Department can indeed create that disclaimer, and agrees again with Justice Elena Kagan that Congress can pass a law removing the disclaimer from the passport. Justice Ruth Bader Ginsburg chides Lewin for trying to read the passport rule as though it’s not part and parcel of a larger provision, in which Congress expressly said “we think Jerusalem is the capital.”
Justice Stephen Breyer aptly points out that he is not really a foreign policy expert: “Now, I’m a judge. I’m not a foreign affairs expert.” He tells Lewin. “And when … they are foreign affairs experts in the State Department, how can I say that I’m right even if I agree with you, and they, who are in charge of foreign affairs, are wrong?” For a while Breyer and Justice Antonin Scalia talk all over each other about the status of Taiwan, until Scalia reminds Lewin: “I thought your position was you couldn’t care less if the State Department thinks that this is going to interfere with our relations with the Palestinians, that Congress is entitled to do what it is authorized to do under the Constitution.” He will soon amplify that to add “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.”
Justice Elena Kagan asks Lewin what the purpose of Congress’s passport statute is, if not to recognize Israel’s sovereignty over Jerusalem. Lewin replies that it “was created to give individuals the right to self-identify as they choose that they were born in Israel.” Kagan pokes her back: “The United States government does not usually give people that right to self-identify in this way.” She characterizes the statute as a “very selective vanity plate law.”
Lewin points out that the old State Department policy was not “neutral” either because it enabled those born in Tel Aviva or Haifa who opposed the state of Israel, “to remove reference to Israel from their passport, but it did not allow the flip.” Kagan pushes again, noting that in her view forcing the State Department to make “diplomatic communications” in support of Israel is, “well, a little bit shocking.”
Solicitor General Donald Verrilli defends the Obama Administration’s claim that with its statute, Congress is “forcing executive branch officials to issue official diplomatic communications that contradict [its foreign policy] position.” He faces tough questioning from Roberts and Alito, and Scalia maintains his position that Congress is free to antagonize whatever foreign entities it wants to. “If it is within Congress’s power,” he presses Verrilli, “what difference does it make whether it antagonizes foreign countries?” The chief justice is annoyed because he believes that if President George W. Bush thought the law was unconstitutional, why did he sign it?
Verrilli says that right after Bush issued the signing statement, things worsened in the Middle East, with “mass demonstrations in Jerusalem, thousands of people in the streets, some turning violent. The Palestinian parliament met and voted for the first time to declare Jerusalem the capital of the Palestinian state.” Roberts snaps back, “That’s partly because the executive branch made such a big deal out of it.” He adds, “It's a self-fulfilling prophecy that it's going to be such a huge deal.”
Sotomayor notes that asking the government to call Jerusalem part of Israel is “asking the government to lie.” And Roberts notes that under the statute passed by Congress nobody is lying. In his view, the Congress is merely asking the State Department to announce: “This is Israel. There's a dispute about it, which I would think is about as true a statement as you can make.”
Alito asks Verrilli for the precise position of the executive regarding Israel's exercise of sovereign powers in Jerusalem. Verrilli responds that as “a practical matter,” the Obama administration acknowledges the authority of Israel over West Jerusalem. And beyond that it’s complicated.
Alito again strives to maintain judicial plausible deniability. When Verrilli says Congress will undermine the U.S. role as an honest broker if this law goes into effect, he replies: “No matter how this court decides, everyone will know what the position of the president is. Everyone will know what Congress thought when they passed this legislation. Whatever we do, that’s not going to be changed, and 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.” Verrilli replies that if the Supreme Court rules in favor of the Zivotofskys, “It won’t be one branch of the United States government saying that this should happen. It will be two branches of the United States Government saying it should happen.” He adds, “Foreign governments, foreign peoples will not be able to have complete confidence that the position that the president announces on behalf of the United States is, in fact, the position of the United States.” He concludes questions over the status of Jerusalem are “the most vexing and volatile diplomatic issue this nation has faced.” Foreign nations, he said, “scrutinize every word that comes out of the U.S. government,” and the “serious adverse effects” of the 2002 law would be to “question whether we can continue to be trusted.”
When Lewin attempts to offer her rebuttal, Sotomayor confronts her: “How could you tell me it’s not a lie?” The United States State Department is being asked to record on the passport that it believes the place of birth of this individual is Israel, “and the executive has said, no, we don’t think it was Israel, we think it was Jerusalem.” Lewin replies that the speech on the passport is merely “the speech of the individual who has self-identified.” Sotomayor is flabbergasted: “But the individual is not the one issuing the passport. It's the government. The document says. This is a diplomatic exchange between sovereigns.”
Lewin closes by saying that the negative international consequences Verrilli warned of are “grossly exaggerated.” Kagan’s jaw literally drops. “Can I say,” Kagan stops her, “that this seems a particularly unfortunate week to be making this kind of ‘oh, it's no big deal’ argument. I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn't it?”
Nobody is quite sure, after argument, which side will cobble together five votes, or for what. One thing that is certain is that even if the court wants to try to look neutral on the subject, it will have taken sides, in a massively consequential fashion. And while it’s always fascinating to hear the nine justices bat about matters of foreign policy “Taiwan!” “Crimea!” “Barcelona!” the way they might do at a dinner party, it’s clear that dinner party knowledge is pretty much what they have to offer. And by deciding who the decider will be, at least on matters of foreign policy, even the neutral justices, aren’t.