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The Supreme Court heard arguments today in a case that combines Middle East policy with the dueling roles of Congress and the president. The question before the court was whether Congress can force the executive branch to list Israel as the birthplace for U.S. citizens born in Jerusalem. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Ever since the creation of Israel, the U.S. has taken the position that no country has sovereignty over Jerusalem until its status is negotiated in a Middle East peace deal. Israel supporters in Congress, however, have tried to force a different policy, seeking to move the U.S. Embassy from Tel Aviv to Jerusalem, and requiring the State Department to allow U.S. citizens born in Jerusalem to list Israel as their place of birth on their passports. Both the Bush and Obama administrations have refused to do that, contending that the passport law unconstitutionally infringes on the president's foreign policy powers.
Enter Menachem Zivitofsky, born in Jerusalem nine years ago, to American parents who emigrated to Israel. His parents sued for enforcement of the federal law that allows them to list Israel as the boy's place of birth. On the steps of the Supreme Court today, Ari Zivitofsky, the father, standing with his son at his side, explained why.
ARI ZIVOTOFSKY: Historically and religiously, the modern state of Israel is very significant, as far as we're concerned. And it's because of that that even though America is a wonderful country, we moved to Israel. And then we're very proud that our third child was born there, and we want his documents to say that.
TOTENBERG: Inside the Supreme Court chamber, the Zivotofskys' lawyer, Nathan Lewin, told the justices that, under our constitutional system, this is a shared power, but Congress has the final say.
Justice Ginsburg: If foreign policy is a shared power, why does Congress trump the executive? Lewin replied that if Congress, in a particular case, overrules the president by statute, that does not hobble the president in terms of future foreign policy.
Justice Sotomayor: What happens if there is a peace accord and Israel gives up any claim to Jerusalem? Is the president free to stop listing Israel on a passport? No, replied Lewin. He has to wait for Congress to change the law. Justice Sotomayor: So you are hobbling the president?
Justice Kennedy was openly skeptical, suggesting Lewin's position is an unsupported intrusion on the president's foreign policy powers. And Justice Alito noted that the name of the statute refers to Jerusalem as the capital of Israel. Justice Ginsburg asked if Congress could order the president to recognize Jerusalem as the capital. Yes, said lawyer Lewin, Congress has that authority.
Justice Scalia: It seems to me you're not arguing for a co-equal congressional power. You're arguing for a superior congressional power. Faced with more questions like that, lawyer Lewin seemed to narrow his argument, contending that the statute here is nothing more than a passport law.
I'm sorry, interjected Justice Kagan, but it's a passport statute that seems to have nothing to do with usual immigration functions, but has everything to do with Congress's declaration of foreign policy. After all, she noted, Congress did not allow Palestinians born in Jerusalem to list Palestine as their place of birth. Yes it did, asserted Lewin. Palestinians born in Jerusalem prior to 1948 can list Palestine as their birthplace. Well, replied Kagan, you have to be very old to say Palestine. Not that old, shot back Justice Ginsburg, who was born in 1933.
Rebutting Lewin's argument was Solicitor General Donald Verrilli. He told the court that the Constitution gives the president the exclusive power to recognize foreign ministers and that since this nation's founding, that power has included the power to recognize foreign governments.
Chief Justice Roberts followed up, asking if it would make any difference if Congress had required some other sort of statement on passports; for example, if the word "Israel" were followed by the word "disputed," in parentheses. Verilli said that would not change the fact that Congress was infringing on the president's authority.
Several justices seemed skeptical of the position taken by the lower courts, that this is a political dispute between two branches of government that the courts should stay out of. Justice Ginsburg called that a subterfuge. Justice Sotomayor: If we call this a political question and don't address the merits, the outcome is that the president is saying he's entitled to ignore Congress. It would be a little unsettling, she said, if a court charged with enforcing the laws passed by Congress refused to say whether a law is constitutional or unconstitutional.