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A seemingly narrow-gauge dispute over the wording used on certain U.S. passports triggered a broad-ranging discussion at the Supreme Court on Monday about the separation of powers in matters of foreign policy. The case before the Court is Zivotofsky v. Hillary Clinton, Secretary of State. It is a dispute over a 2002 federal law that directs the State Department, on request, to list Israel as the country of birth on passports for U.S. citizens who were born in Jerusalem. Jerusalem’s status as a capital or even as part of Israel has been a touchy point for decades worth of presidents, fearful of spoiling the peace process between Israel and the Palestinians, who lay claim to at least part of the city. When President George W. Bush signed the appropriations bill that included the passport provision, he issued a signing statement declaring that it was an unconstitutional infringement on executive power. Solicitor General Donald Verrilli Jr. made the same point on Monday. The law, he said, infringes on a President’s “exclusive recognition power” – the power to recognize governments and receive ambassadors – and, Verrilli said, “neither a court nor the Congress can override that judgment.” The Court rarely likes to be told it has no jurisdiction over a case brought before it, and several justices pushed back at Verrilli’s suggestion that the Jerusalem passport issue is a political question beyond the Court’s reach. “It does seem to me that your position would be much stronger if you said there is [Supreme Court] jurisdiction and the president wins,” Justice Anthony Kennedy told Verrilli. Verrilli stuck to his “exclusive to the president” argument, but he did not seem opposed to winning in the way that Kennedy suggested. In the case before the Court, both the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the D.C. Circuit accepted the government’s “political question” argument and found the case beyond the jurisdiction of the courts. Verrilli also stressed that he was not arguing that Congress was powerless in foreign policy matters, but that since the days of George Washington, the narrow power of recognizing foreign governments has been the exclusive province of the president. A passport, he said, was a public document that expresses the president’s choices. Preceding Verrilli to the lectern was veteran advocate Nathan Lewin of Lewin & Lewin in Washington, arguing on behalf of Menachem Zivotofsky, a U.S. citizen born in Jerusalem in 2002. His parents tried to invoke the Jerusalem law when they sought a passport, including the word Israel, for the child. Lewin tried to frame the case as one that did not involve core presidential foreign policy powers, but rather more mundane passport administration matters that are within the power of Congress to regulate. He also invoked the landmark 1952 separation of powers case Youngstown Sheet & Tube Co. v. Sawyer, in which Justice Robert Jackson said a president’s power was “at its lowest ebb” when he acted contrary to the “expressed or implied will of Congress.” But several justices indicated they thought Lewis was arguing for a co-equal or even dominant role for Congress at the expense of presidential prerogatives and power to make foreign policy. “You are arguing for a superior congressional power,” Justice Antonin Scalia said. “You are saying, whatever Congress says, the president has to comply with.” Lewin said his position “does not hobble the president.” Justice Sonia Sotomayor asked Lewin whether the president would have to wait for Congress to change the disputed passport law if Israel suddenly gave up its claim to sovereignty over Jerusalem. When Lewin answered yes, Sotomayor said, “So you are hobbling the president with respect to situations that occur frequently, as happened in Egypt, sometimes overnight.” Kennedy wondered if there are any foreign policy determinations that are for the president alone to make. Lewin only came up with one: diplomatic communications. Kennedy dismissed that as a “narrow, crabbed interpretation of the president’s foreign affairs power.” The packed courtroom was also treated to some generational joshing between Justices Elena Kagan and Ruth Bader Ginsburg. Lewin told the Court that the disputed statute allows passport holders to stick with Jerusalem alone on their passport, or to add Israel, or, “if he’s born before 1948, he can say Palestine. So it is an individual choice.” Said Kagan, “Well, you have to be very old to say Palestine.” The Court’s youngest justice, Kagan was born in 1960. “Not all that old,” growled Ginsburg, who entered the world in 1933. Tony Mauro can be contacted at [email protected].

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