Justices Referee Branch Dispute Over ‘Tinderbox' That Is Jerusalem

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By Kimberly Robinson

Nov. 3 — A battle between Congress and the President played out during oral arguments at the U.S. Supreme Court Nov. 3, on the eve of mid-term elections.

Two branches of the federal government sparred over separation of powers in foreign affairs, with the justices—the third branch—stepping in to referee.

Yet neither party appeared to deliver a knockout punch, as the justices weighed the potential explosiveness of the U.S. position on Jerusalem against Congress's ability to exercise its constitutional powers.

“The question of the status of Jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades,” Solicitor General Donald B. Verrilli Jr. said in representing the State Department.

That's why Congress—through passport legislation—can't force the executive to change its long-standing neutral position on the matter, he argued.

But the 2002 law at issue in this case—requiring the State Department to list “Israel” as the country of birth for a Jerusalem-born U.S. citizen—wouldn't have the dire consequence predicted by the executive, Alyza D. Lewin of Lewin & Lewin LLP, Washington, said.

However, many justices seemed to disagree.

“Jerusalem is a tinderbox,” Justice Elena Kagan said.

“And so sort of everything matters, doesn't it?”

Couldn't Care Less

But arguing for the now-12-year-old boy who wants his passport to specify “Israel,” Lewin said that the principal reason that the court should require the State Department to comply with Section 214(d) of the 2003 Foreign Relations Authorization Act, Pub. L. No. 107-228, is that the purpose of the country-of-birth designation is solely for identification.

That doesn't implicate foreign relations or the executive's power to recognize foreign governments, she said.

But you are trying to disassociate Subsection (d) from the rest of the statute, Justice Ruth Bader Ginsburg said.

When read as a whole, the law makes clear that Congress was in fact attempting to dictate the federal government's position on the status of Jerusalem, she said.

It even includes a provision explicitly stating that the capital of Israel is Jerusalem, Ginsburg added.

Subsection (d) should be read on its own, Lewin countered, repeating that the place-of-birth designation wasn't tantamount to recognition of Israel's sovereignty over the city of Jerusalem.

You could read Section 214(d) like that, Justice Stephen G. Breyer conceded. But the executive reads Section 214(d) differently—as having considerable consequences for the government's foreign relations.

“Now, I'm a judge. I'm not a foreign affairs expert. And when [the executive] tells me that, and they are foreign affairs experts in the State Department, how can I say that I'm right” and they are wrong, Breyer asked Lewin.

Justice Antonin Scalia interrupted Lewin's response.

You should be arguing that “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, even when that contradicts” the executive, Scalia said.

Congress could declare war on a country that the State Department wants to have friendly relations with, Scalia added.

So it doesn't mean Congress can't do something because the State Department wants to “make nice” with a particular government, he said.

Selective Vanity Plates

Well, if it's not recognition, then what is it, Kagan wanted to know.

It's a way for individuals to “self-identify,” Lewin responded.

That's not usually an option that the federal government gives to its citizens, Kagan said.

If you are born in Northern Ireland, you don't get to put “Ireland” on your passport, she noted.

In that way, Section 214(d) seems like a “very selective vanity plate law,” Kagan said.

But that isn't unique to Jerusalem, Justice Samuel A. Alito Jr. said.

Can't a U.S. citizen born in Barcelona simply list the city on a passport if he or she rejects Spain's authority over the region, he asked.

Lewin confirmed that State Department policies generally allow passports to disregard the larger entity—listing only the city or region—when requested by the passport holder.

Then that's a vanity plate law, too, Alito said.

We're Not in Ukraine Anymore

The heart of the problem with the law is that even if it doesn't officially change the U.S.'s unbroken policy of neutrality regarding the ownership of Jerusalem, it attempts to force the president to change this position, Verrilli said.

It is a diplomatic communication that contradicts the official position, he said.

But if it is within Congress's passport power, what difference does it make that it might upset foreign relations? Scalia repeated.

This statute requires the executive itself to contradict the official policy, Verrilli responded.

That undermines the president's credibility in the Middle East peace process, he added.

What if the State Department included some kind of disclaimer in the passport, specifying that the official position of the U.S. remains a neutral one, Justice Anthony M. Kennedy asked.

That doesn't solve the problem either, Verrilli said, pointing out that there were serious repercussions when the law was originally passed, despite a signing statement from then-President George W. Bush that the executive would not enforce the provision.

The “consequences that ensued in the Middle East in October of 2002 were that there were 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, no longer forbearing on that issue,” Verrilli said.

But that was partly because the executive's signing statement made such a big deal out of the statute, Chief Justice John G. Roberts Jr. said.

They could have just said, “Nothing to see here, move on” but instead the executive created this “self-fulfilling prophecy,” Roberts said.

“Mr. Chief Justice, with all due respect, I think on this question that you're asking me, this is a place where the court should accord deference to the judgments of the executive branch and the State Department, in particular,” Verrilli responded.

Breyer seemed to agree that the executive was due deference, saying that this problem could easily be replicated with Ukraine or Iran.

That's right, Verrilli confirmed.

And of course there would be ramifications if the U.S. were to list “Russia” as the country of birth for someone born in Crimea, he added.

Everything's a Big Deal

So even if Congress has the authority to regulate something, it can't, if that something might implicate the president's recognition power, Alito asked sarcastically.

Verrilli disagreed, but made clear that Congress can't use its legitimate powers to force the president himself to contradict his official position with regard to foreign relations.

But a foreign official doesn't even know that a particular passport holder was born in Jerusalem because the passport just lists “Israel,” Scalia said.

That person could be from Jerusalem, but the passport holder could also be from Tel Aviv or Haifa, he said.

But the world would know that the U.S. issues thousands of passports to Jerusalem-born U.S. citizens that lists “Israel” as their country of birth, Verrilli responded.

Well, whatever we do, the world will know what Congress's and the president's position are, Alito said.

That's “too easy,” Verrilli responded. At the very least, a decision in favor of the boy would mean that two branches of the government think that the statute should be enforced.

The consequence of enforcing the law “is that the credibility of the executive—the credibility of the president on this fundamental question of where the United States stands on the status of Jerusalem until the parties work it out will inevitably and seriously be called into question and into doubt,” Verrilli said.

“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.”

When Lewin attempted to throw cold water on the government's grim predictions, Kagan interrupted.

“I mean, history suggests that everything is a big deal with respect to the status of Jerusalem,” she said.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

A transcript of the argument is online at http://pub.bna.com/lw/13628Transcript.pdf.