Zivotofsky v. Kerry: Will Executive Privilege Trump Israel Advocacy?

The disputed status of Jerusalem will ostensibly be under review by the U.S. Supreme Court today. Zivotofsky v. Kerry asks whether the president’s so-called “foreign affairs power” — based on his textual duty to “receive ambassadors and other public ministers” — ousts Congress from directing foreign policy. When an American citizen is born in Jerusalem, the State Department issues a passport with “place of birth” listed as “Jerusalem.” In 2002, Congress passed a statute (214d) directing the State Department to permit parents to choose either “Jerusalem” or “Israel.” The State Department has consistently refused to do so, citing U.S. policy and the president’s foreign affairs power. The family of a child born in 2002 now is suing to require Secretary of State Clinton to amend the passport to include “Israel.”

Both the Bush and Obama administrations have maintained, first, that Congress can’t order the president to conduct foreign policy according to its rules, and, second, that in any case, that this kind of inter-branch dispute is what is called a “political question.”

On one side, we have the Zivotoskys (the petitioners), represented by a Mr. Lewin with the following organizations supporting the parents’ desire to list “Jerusalem, Israel” on their son’s passport (he was born in West Jerusalem): Members of the House of Representatives, the ADL, AIPAC, the Lawfare Project, the American Association of Jewish Lawyers & Jurists, and the Zionist Organization of America. On the other side, we had Hilary Clinton, Secretary of State, maintaining the Bush administration policy of not implementing 214d — with her departure, the position now defaults to John Kerry. The U.S. government is represented in this case by the Solicitor General. Americans for Peace Now was the only U.S. Jewish organization to originally file a brief in support of the Solicitor General’s argument, arguing that a decision for the petitioners would have grave consequences for a settlement on a future Palestinian state.

All of these non-governmental organizations (and Congress) have been hoping for a decision that could amount to a foreign policy action affecting a future peace settlement of Israel, an end run, if you will, that moves towards de jure recognition of the claim that all Jerusalem is part of the State of Israel. When first enacted, the State Department’s guidelines on Jerusalem passport policy specified that if someone wants to list Jerusalem as their birthplace on a U.S. passport, they cannot write either “Israel” or “Jordan” after the city’s name.

Despite amicus briefs taking a clear political tone – i.e., announcing that it’s always been the policy of Congress plus organizations x, y and z that Jerusalem is in their eyes Israel’s undivided and eternal capital – the petitioners themselves focused on the constitutional interpretation once their case got to the Supreme Court and thus, on denying that this was a “political question” beyond the court’s mandate to rule on.

Originally their line of attack was that lower courts were wrong to rule that this affair was “political question” – i.e., one asking the courts to set foreign policy, a task beyond their mandate. The Solicitor General also argued this point at the outset, but since the case has progressed into constitutional grounds, both sides have ditched that argument. They are now instead focus on the constitutionality of 214d, which Congress says is within its prerogative to legislate but the executive says is within its prerogative, not Congress’.

So while we haven’t left the realm of the Israeli-Palestinian conflict, we have definitely passed into the realm of the Congressional-Executive conflict. George W. Bush, in fact, is the executive whose White House argued against implementing 214d when it was passed in 2002. Note that this was a time when Republicans held a thin House majority and there was a 50-50 split between them and Democrats in the Senate – and the resolution had strong support from both parties, of course.

Perhaps even George W. Bush thought that the Congressional move was a bad idea from a policy standpoint, but in reality, he most likely objected to it on constitutional grounds because presidents do not like being told by Congress how to run foreign policy. This is a matter some GOP candidates seem to be forgetting, which really just demonstrates how little foreign policy experience they collectively have amongst themselves. If they did make their Jerusalem embassy move and inaugural overseas trip to the city, they’d surely win Congressional applause but would be setting a precedent for Congress to then undermine them on everything in between ambassadorial appointments (over Russia, for instance) to arms deals (to Egypt, Saudi Arabia and Taiwan).

The Chief Justice of the Supreme Court says that “the Judiciary must decide if the Zivotofskys’ counsel’s interpretation of the statute is correct, and whether the statute is constitutional” — arguing the decision from the point that it is “right” for all of Jerusalem to be recognized as an undisputed part of Israel would not be a constitutional question, it would be a “political question” left to the president and Congress to work out. The Supreme Court noted in an 8-1 opinion in March 2012 that “the only real question for the courts is whether the statute is constitutional” and that it is the lower courts’ job to determine just this at the moment – which means the case could make its way back to the court depending on how the lower courts rule.

This is what is the lower courts were told to decide:

“In this case, determining the constitutionality of §214(d) involves deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law must be invalidated and Zivotofsky’s case should be dismissed for failure to state a claim. If, on the other hand, the statute does not trench on the President’s powers, then the Secretary must be ordered to issue Zivotofsky a passport that complies with §214(d).”

If the Supreme Court rules in favor of the administration, it would almost certainly affirm the Solicitor General’s “backup” argument, first explicitly put forward by the Bush administration, that 214d is an unconstitutional infringement on executive power and that the White House and State Department can continue refusing to implement the law. If 214d is struck down, that settles it until another way is found to raise the issue and get it before the highest court in the land (no mean feat). The administration would have preferred it that this suit never came about, but it looks determined to put its foot down and win this fight on constitutional grounds.

This is not because the court accepts the reasoning of Bush and Obama’s argument that carrying out 214d would prove detrimental to U.S. interests in the Middle East, though the sole dissenting vote on the “political question” did express reservations because of how such seemingly small actions like passport printing can impact events in Israel. It is because of that hoary old thing called “precedent” law students will talk about until you are glazed over and they’re gasping for breath.

The U.S. Constitution’s Article II, Section 3, Clause 3 grants the president exclusive power to receive ambassadors. That is quite literally all it says, but over 200 years of American history the Supreme Court has held that this amounts to diplomatic recognition of a foreign entity, which, of course, entails territorial arrangements. It is it seen as a presidential prerogative, not a power Congress possesses or that Congress has ever successfully argued it can possess. This is why Justice Kennedy somewhat tetchily asked Mr. Lewin two years ago if “Is there any treatise, writer or decision of this Court that supports such a narrow, crabbed interpretation of the President’s foreign affairs power?” Although some of the justices seemed to hint that they felt the Solicitor General had overstepped in his definition of executive power, it seemed that the Court was much more skeptical of the possibility that Mr. Lewin was arguing for Congressional superiority in foreign policymaking. Justice Scalia pulled no punches here when he said “it seems to me you are not arguing for a co-equal congressional power, you are arguing for a superior congressional power.”

The reason the Solicitor General went to argue that “The Executive’s policy is not to prejudge the status of Jerusalem, and any official statement to the contrary impinges upon the Executive’s prerogative” is because that is the decision the administration is seeking to get from the court — a ruling that strikes down 214d and buttresses the executive branch from future Congressional challenges like it over disputed territories. The Supreme Court will not rule on whether this policy itself is in the U.S.’s best interests; again, an argument actually made along those lines would have been dismissed as a “political question” to be resolved between Congress and the Executive.

There is another argument made, both outside and inside of the court, about there being a precedent for upholding 214d. There is a precedent for 214d:

“In 1994, Congress passed a law instructing the State Department to permit Americans born in Taiwan to have their birthplace listed as Taiwan on passports. The State Department complied with the congressional directive despite vigorous communist protest. The State Department — ignoring its own precedent — maintains allowing U.S. documentation bearing the name “Jerusalem, Israel” shouldn’t be allowed because it will provoke protest from the Arab states.”

The “precedent” is really not that the Taiwanese got special status on U.S. passports. The precedent is that the president decided whether or not to implement the Congressional statute regarding Taiwan. (He could have ignored it, and perhaps that contest of wills would have led to a Supreme Court case like the one today.) But it didn’t because Clinton decided to accept Congress’s reasoning and not contest their law. The court did not force it upon him. The substance of his decision is irrelevant from a constitutional standpoint – it would still be a precedent in the legal sense had he not given Taiwan special status (i.e., it would have affirmed that the executive branch ultimately decides on recognition and passport matters, no matter how many laws or resolutions or amicus briefs Congress raises in protest).

The State Department is presently implementing the President’s decision to not recognize any state as having sovereignty over Jerusalem. Unless Obama changes his mind or loses the case before the nine justices, Congress cannot make him do anything about it. That’s what it will almost certainly come down to when the Supreme Court issues its ruling.