They say that timing is everything. It certainly seemed that way when the so-called Jerusalem passport case came before the United States Supreme Court. The case is about whether Congress can require the State Department to issue a U.S. passport to Menachem Binyamin Zivotofsky, an American child born at Jerusalem, saying he was born in Israel.
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The argument began with the lad’s lawyer, Alyza Lewin, suggesting that this was no big deal. It wasn't about Jerusalem’s “sovereign status” — though Congress has been trying to award that status to Israel for years — but is merely about Congress’s power to regulate foreign commerce. Regulating commerce with foreign nations is one of the bright-line powers that the Constitution clearly grants to Congress.
So Lewin was immediately interrupted by the Justice Anthony Kennedy. He could well prove to be the swing vote in this case, as in so many others. What he wanted to know was whether the law would permit the State Department to list the boy’s birthplace as Israel but add a disclaimer that the document isn’t a declaration by the president that Jerusalem is within Israel.
Yes, Lewin allowed. So Justice Elena Kagan piped up to ask whether Congress could turn around and require the disclaimer to be removed from the passport. Lewin said yes. That precipitated a long wrangle in which, at one point, Justice Sonia Sotomayor suggested that this was an effort to get the State Department to lie. Eventually Lewin had to answer something like 50 questions in half an hour.
The last one was from Kagan. Lewin had been insisting that the case was not about the great geopolitical issues but merely about a boy’s passport. “Can I say,” Kagan said at the end, “that this seems a particularly unfortunate week to be making this kind of, ‘Oh, it's no big deal’ argument.... Right now,” Kagan said, “Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there.”
If I’d have been Alyza Lewin, I’d have thrown my briefcase up in the air and walked out. Her client, after all, has been trying to get an answer from these sages since 2002. The boy was in diapers when he — or his parents — filed his case. He’s now past his bar mitzvah. Charles Dickens couldn't have imagined more judicial fuss-budgeting than has gone on over this boy’s travel document.
Yet the judges are still trying to figure out whether the case should be decided by Arab rioters or the Constitution. That parchment, just for the record, does not say that Congress is excluded from a role in establishing foreign policy. On the contrary, it can declare war, raise an army, establish a navy, grant letters of marque and reprisal, regulate commerce with foreign nations, and, via the Senate, confirm ambassadors and ratify treaties.
It cannot, incidentally, “make peace.” The Founders of America debated, when the Constitution was written in 1787, whether to grant to Congress the power to “make peace” and voted against it. But I digress. What Secretary of State Kerry, the defendant in this case, is suggesting is that practically the only other power Congress lacks is the power to give Menachem Zivotofsky the passport he wants.
Kerry actually voted for the law he doesn't want to obey, as did Hillary Clinton, who also didn't want to obey the law when she was state secretary (the measure passed the Senate unanimously). It’s just a most astonishing situation. Monday was the second time the case was heard by the Supreme Court, and it has reached the point where the judges are going to have to decide.
The clearest grasp of the issue is held by Antonin Scalia. When it was before the court in 2011, he noted that even though our case-law says that “the President is the sole instrument of the United States for the conduct of foreign policy,” there is “certainly room in — in those many cases for saying that Congress can say what the — what it’s — what the country’s instrument is supposed to do.”
It’s no small irony that on the day after the Supreme Court heard this question for the second time, Americans are going to the polls to choose a new Congress, one that seems — with each passing hour — less and less likely to go in for the kind of temporizing in which the State Department specializes. Timing may yet turn out to be everything.
Seth Lipsky is editor of The New York Sun. He was a foreign editor and a member of the editorial board of The Wall Street Journal, founding editor of The Forward and editor from 1990 to 2000.