Executive Power

Two Quick Thoughts on Today's Argument in Zivotofsky

By Wells Bennett
Monday, November 3, 2014, 4:42 PM

Today I attended the hour-long oral argument in Zivotofsky v. Kerry

I won’t rehearse the facts or procedural history, other than to remind readers of the basic question under discussion: the constitutionality of Section 214(d) of the 2003 Foreign Relations Authorization Act, which requires the Secretary of State, in the case of a U.S. citizen born in Jerusalem, to record “Israel” as the place of birth indicated on the citizen’s passport---provided the citizen or her parents so request.

Without further ado, here are two off-the-cuff reactions to this morning's proceedings: 

1. The Petitioner’s “It’s Just Passport Regulation” Claim

As readers likely know, Zivotofsky’s primary argument before the Supreme Court has been twofold: first, that Section 214(d) legitimately regulates the contents of passports; and second, that the provision does not trample on any exclusive presidential power, including power to recognize foreign sovereigns or territorial boundaries.

If there is great enthusiasm for this view among the Justices, then it wasn’t especially evident in their queries from the bench.  Three justices were openly skeptical.

Justice Ruth Bader Ginsburg thought the petitioner’s counsel, Aliza Lewin, had read Section 214(d) far too narrowly; referring to other parts of the statute, the justice told the attorney that as a whole, Section 214 clearly embodies a congressional policy of deeming Jerusalem as the capital of Israel---an observation in some tension with Lewin's primary position.

For her part, Justice Sonia Sotomayor rather ungently described the stance urged by Lewin and company---recording a citizen’s place of birth as Israel for passport purposes on the one hand, while on the other disclaiming Israel’s sovereignty over Jerusalem in other all diplomatic channels---as a “lie.”

Then there was Justice Elena Kagan.  The latter hypothesized a letter, in which the Secretary of State would proclaim to foreign nations that American citizens born in Jerusalem were born in “Israel.”  When Lewin deemed this imaginary-but-functionally-indistinguishable-from-Section 214(d) device constitutional, an incredulous Kagan countered that Congress is “basically telling the Secretary of State to engage in a kind of diplomatic communication with other foreign countries.” Lewin’s answer was therefore “shocking,” in Kagan’s view.

Justices Stephen Breyer and Anthony Kennedy didn’t blast Lewin’s marquee legal argument so aggressively, but also didn't exactly suggest that it ought to prevail, either. For his part, Breyer described the petitioner's theory as at least “reasonable.” Yet he also noted the Solicitor General’s vigorous disagreement with the theory, along with the government’s related claim that if sustained, Section 214(d) would upend recognition determinations made by every President since Truman and cause profoundly bad foreign affairs consequences. (The harms here include discrediting the executive branch’s longstanding refusal to declare Israel sovereign over Jerusalem, confusing foreign nations as to the United States’ true position, upsetting Palestinians, and generally mucking up the continued U.S. role in helping the disputing parties to address Jerusalem’s status.) Accordingly Breyer invoked deference doctrines, and wondered how he, as a jurist, could possibly countermand the executive branch’s forecast of bad policy harms.

Likewise Justice Kennedy. He asked whether, considering that Congress hasn’t yet countermanded the President’s recognition determination explicitly, the President’s insistence that Section 214(d) impinges on recognition powers nevertheless ought to “trump” Lewin’s arguments in the meantime. Still, the Justice seemed more doubtful than not about the true intent behind the legislation t issue. When Lewin denied that Section 214(d) amounted to a “political declaration” regarding Jerusalem, Kennedy quipped that in that case he wasn’t “sure why Congress passed it" in the first place. Yikes.

So what does all this foretell?  I don't know of course, and won't make any firm predictions. With that said, and with all the usual caveats and disclaimers made, the day's questioning seemed to hint at a five-justice majority unwilling to sustain Zivotofsky's central argument---that Section 214(d) is garden variety passport legislation posing no constitutional problems.

2. The Government’s “Sustaining Section 214(d) Will Harm Foreign Affairs” Claim

As noted above, Justice Breyer pressed Zivotofsky's lawyer about the deference owed to executive branch assertions, about the bad foreign relations consequences that would follow if the Justices ultimately uphold Section 214(d).  This didn't come as a surprise. Deference, and the judiciary’s competence to address sensitive foreign affairs questions, is an evergreen subject in this area of the law.

But here’s what was surprising, at least to me: some naked doubt from the bench as to whether the executive branch’s policy forecast is just plain wrong.

The petitioner had downplayed possible the government's predicted foreign relations harms in his briefing. This morning, Justice Samuel Alito seemed to register sympathy for the petitioner’s view. Addressing the Solicitor General, Alito said that were the petitioners to prevail in Zivotofsky, then the President’s position as to Jerusalem likely would remain unchanged: as before, the United States would not deem Israel as sovereign in Jerusalem; the Court’s ruling would be legal, after all, and not compel any political determination as to recognition. Thus Justice Alito surmised that the only true downside for foreign policy would be “misunderstand[ing]” of the United States’ true approach---which presumably the executive branch could correct through public pronouncements.