In today’s Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey – who served in the Justice Department and the White House Counsel’s office during the Reagan and George H. W. Bush administrations – propose a “balancing” test to resolve the Zivotofsky passport case. They acknowledge Congress can regulate passports and has given Jerusalem-born Americans the right, if they request it, to have “Israel” on their passports as their place of birth. They argue, however, that (1) the “harm” to Congress would be “small” if its statute were declared unconstitutional, while (2) presidential “recognition authority” would be “severely undercut” if the law were implemented. Both assertions are demonstrably wrong, as Monday’s oral argument made clear.
Chief Justice Roberts, in an exchange with Solicitor General Verrelli, demonstrated that there is no principled way of applying such a test, and that the “harm” would be either ceding unreviewable power to the president or requiring case-by-case litigation as the Court “balances” each case:
CHIEF JUSTICE ROBERTS: Let’s say … that passports are printed in Country A, not the United States, and there’s a printing plant there, and Congress passes a law saying, no, you must have the passports printed in Country B because we don’t think you should recognize Country A. Does that interfere with the President’s recognition power?
How do you “balance” that one? And who decides (“balances”) it – the President, the Congress, or the Court? Verrelli responded to Roberts that the hypothetical was a harder case than Zivotofsky’s, but Verrelli did not venture a judgment on it, nor declare which of the three branches of government should make the decision. The Roberts hypothetical shows that while a “balancing test” may sound reasonable, “balance” is in the eye of the beholder: one could just as easily argue that Congressional authority would be “severely undercut” if the president can ignore it whenever he thinks foreigners won’t like it.
Justice Alito’s questioning also demonstrated that the president’s power would not be “severely undercut” if the law were enforced, because the U.S. already effectively recognizes Israeli sovereignty over Jerusalem — for purposes directly bearing on Zivotofsky’s passport:
JUSTICE ALITO: May I ask you another factual question? When Menachem [Zivotofsky] was born, was he issued a birth certificate by the Israeli authorities?
MS. LEWIN: Yes.
JUSTICE ALITO: And the United States recognizes that as a lawful exercise of Israeli authority, to issue a birth certificate for a child born in Jerusalem?
MS. LEWIN: I believe they do, Your Honor.
JUSTICE ALITO: So this is a question I would ask the Solicitor General, but I don’t completely understand what the position of the United States is regarding Israeli sovereignty over Jerusalem. I understand it is the position of the United States that Israel does not exercise full sovereignty over Jerusalem, but that in this instance, the issuance of a birth certificate, I suspect the United States recognizes that Israel is lawfully exercising attributes of sovereignty over the territory of Jerusalem.
In other words, to qualify for a U.S. passport, one must prove one is a U.S. citizen; and the U.S. accepts the birth certificate issued by Israel for an American born in Israel’s capital. But it would supposedly “severely undercut” the president’s power if that individual has the right, at his request, to have “Israel” put on his own passport as his place of birth?
Later in the oral argument, Justice Alito directed his question to Solicitor General Verrilli:
JUSTICE ALITO: Can I ask you the question I asked Ms. Lewin. What exactly is the position of the executive regarding Israel’s exercise of sovereign powers in Jerusalem? Is it the case that it is the position of the executive that Israel cannot lawfully exercise any sovereign powers within Jerusalem?
GENERAL VERRILLI: The position of the executive is that we recognize, as a practical matter, the authority of Israel over West Jerusalem. With respect to the rest of Jerusalem, the issue is far more complicated. It might well be, as a practical matter … we would accept [the birth certificate] as evidence of birth …
JUSTICE ALITO: Well, it must have been accepted as evidence of birth or the passport would never have been issued.
Zivotofsky was born in Shaare Zekek Hospital in West Jerusalem. Thus as a “practical matter,” as even the Solicitor General conceded, he was born in Israel. Would it really “severely undercut” the president’s power if Zivotofsky’s passport, like his birth certificate, recognized that fact — while reserving presidential authority to declare it does not affect U.S. recognition policy, just as President Clinton did in connection with the passports of Taiwan-born Americans?
It is a strange “balancing test” that sees no harm in preventing Congress from exercising its admitted Constitutional authority, when – as Justice Kennedy’s questions skillfully showed – the president’s own authority is easily preserved. This case could have been resolved years ago by adhering to the Taiwan precedent, rather than litigating for a decade to preserve the pretense that the “peace process” depends on the place of birth in Zivotofsky’s passport.