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The grand principle of the separation of powers in the Constitution was battled over Monday at the Supreme Court in a case about a small but potentially momentous detail: whether U.S. passports should list Israel as the birthplace for American citizens born in Jerusalem.
Most of the conservative justices seemed sympathetic to upholding the law Congress passed in 2002 allowing such wording on U.S. passports on request, while all of the liberal justices seemed to lean in the direction of the right of President Barack Obama and his predecessor to refuse to enforce the law.
The frequent swing vote on the court, Justice Anthony Kennedy, made clear repeatedly that he was reaching for a compromise in which eligible citizens could still get “Israel” listed on their passports but the State Department could issue a disclaimer saying the language didn’t represent the official view of the U.S. government.
“It seems to me that you could draft a statement that actually furthers your position,” Kennedy told Solicitor General Donald Verrilli.
Verrilli said he understood “the appeal of that idea,” but that confusion would still persist about the U.S. government’s position. He also said that passage of the law a decade ago had diplomatic consequences and led to protests.
“The issuance of the disclaimer is a credibility hit,” the solicitor general insisted.
Chief Justice John Roberts noted that former president George W. Bush signed the law, albeit with a so-called signing statement saying he disagreed with the Jerusalem provisions and would not enforce them.
“If it were such a big deal, why did the chief executive at the time, sign it?” Roberts asked. “So we should give no weight to the fact the chief executive signed the law?”
Alyza Lewin, a lawyer for the American couple who wanted “Israel” listed on their Jerusalem-born son’s passport, argued that Congress was simply allowing Americans a personal choice and not seeking to dictate U.S. policy in the long-running Israeli-Palestinian dispute.
“What goes on a passport as a place of birth is not tantamount to recognition,” Lewin argued.
Justice Ruth Bader Ginsburg rejected that argument, saying that measure as a whole made clear that taking sides in that dispute was precisely what Congress was trying to do. “You’re trying to deal with one section without regard to that of the whole provision,” Ginsburg said.
Justice Elena Kagan noted that while the law allows Americans born in Jerusalem to get Israel on their passports, they can’t get Palestine listed even if they believe the city or part of it is rightfully part of a Palestinian state. “This is a very selective vanity plate law, if you want to call it that,” Kagan said. “That suggests that Congress had a view and the view was that Jerusalem was properly part of Israel.”
Among the conservatives on the court, Justices Antonin Scalia and Samuel Alito seemed to have the least patience for the executive branch’s arguments.
Alito rebutted Kagan’s “vanity plate” comment by suggesting that an American born in Barcelona could likely get a passport listing simply the name of that city and making no mention of Spain, since the State Department generally allows passports to be issued on request solely with specific local names for the place of birth.
“Is that a vanity plate for people who believe in Catalan independence,” Alito asked.
Alito noted that the U.S. appears to take official notice of some of Israel’s actions in Jerusalem, such as criminal law enforcement and issuing birth certificates, and that notice seems to occur without protest that it signifies a change in official U.S. policy that the status of Jerusalem should be resolved through negotiations.
Scalia noted that even if Congress couldn’t recognize a country, it could declare war on a country, which seems far more consequential. He also seemed to dismiss the impact of issuing the passports the way Congress authorized, saying “it just has an effect on the State Department’s desire to play nice with the Palestinians.”
Alito also said that the court shouldn’t rule based on the fact that some around the world might misunderstand what the justices would be blessing by allowing Congress’s law to stand.
“It’s not a misperception. It’s an accurate perception,” Verrilli said, noting the intent of the law was to take a stand in favor of Israel’s sovereignty over Jerusalem.
Chief Justice John Roberts said that by putting up a big fight over the issue, Obama and Bush made the consequences of the passport issue more severe.
“The executive has litigated this case as a self-fulfilling prophecy that it’s going to be a big deal,” Roberts said.
While Verrilli said allowing the law to take effect would damage America’s role as “an honest broker” in the Israeli-Palestinian dispute, Lewin said too much was being made of the impact.
“That passport when shown would not be making any kind of political statement,” Lewin argued. “The consequences described by the solicitor general are grossly exaggerated.”
That prompted Kagan to chime in, noting significant unrest in Jerusalem just in the last few days around disputed holy sites in the old city.
“This seems a particularly unfortunate week to be making this no-big-deal argument,” Kagan said. “Right now, Jerusalem is a tinderbox….Sort of everything matters, doesn’t it?”
Justice Sonia Sotomayor seemed focused on the notion that the law would compel the executive branch to make a statement it disagrees with.
“They’re asking the government to lie,” she said.
Justices Stephen Breyer and Antonin Scalia sparred a bit when Scalia interrupted Breyer as he explained why he didn’t think the State Department’s policy of entering “Taiwan” on passports of Americans born in Taiwan undercut the executive branch’s position in the Jerusalem case.
“China objected to that,” Scalia interjected.
It’s “not whether China objected or didn’t object. I’m not interested in that,” Breyer replied.
It was the case’s second trip before the Supreme Court. In 2012, the justices rejected lower court rulings that the dispute amounted to a political fight between Congress and the president that the courts should not resolve. However, the high court’s ruling sent the case back to the lower courts without addressing the merits of the dispute.
The U.S. Court of Appeals for the D.C. Circuit ruled last year that the passport law unconstitutionally infringes on the president’s power to recognize foreign countries and to decide what territories they have sovereignty over.