The decision of the U.S. Supreme Court Monday to give another hearing to one of the most explosive cases before it in years – the so-called Jerusalem question – certainly sets the stage for some high court drama in the Middle East. It concerns whether Secretary of State John Kerry will have to bow to Congress and state in Menachem Binyamin Zivotofsky’s U.S. passport that he was born in Israel.
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The law that requires Kerry to do this – for Zivotofsky, or any other American born in Jerusalem who wants Israel listed as his place of birth – was passed in 2002 by an almost unanimous House and a unanimous Senate. The Jerusalem requirement was part of a larger bill funding the State Department. It was signed by one of America’s most pro-Israel presidents, George W. Bush. But Bush issued a signing statement saying the requirement to issue consular documents listing Jerusalem as part of Israel infringed on his executive powers.
He may have promised to move the American embassy to Jerusalem, but he defaulted on that. He also refused to yield to Congress on the passport question. President Barack Obama took the same position, as did secretaries of state Colin Powell, Hillary Clinton and now Kerry. Clinton and Kerry balked, even though they’d been in the Senate that passed the law unanimously. They all tried to dodge it by saying that the question of Jerusalem was the president’s to decide and, in any event, was a political matter beyond the ken of the courts.
All the liberal commentators and the anti-Israel left were certain Master Zivotofsky was going to lose. And he was losing, until it reached the Supreme Court the first time. Then, in March 2012, the Supreme Court stunned the foreign policy bar by casting aside Secretary of State Clinton’s pettifogging. It did so by a vote of 8-1, in a stern opinion written by Chief Justice John Roberts, who told the lower court in no uncertain terms that it would have to step up and decide the matter.
Roberts made clear that the courts weren’t being asked to decide whether Jerusalem was part of Israel. That is a political question. They were being asked to decide whether Congress has the authority, under the Constitution, to decide the political question. “This is what courts do,” Roberts wrote. “The political question doctrine poses no bar to judicial review of this case.” So, the matter went back to the second most powerful bench: the United States Court of Appeals for the District of Columbia Circuit.
Last year, it issued its second ruling against Zivotofsky. It held that Congress had infringed on the president’s so-called “recognition power.” So Zivotofsky went back to the Supreme Court and successfully asked for a second hearing. Now the Nine will have an opportunity to answer what I call the World War III question. It was first posed by Justice Sonia Sotomayor, who asked point-blank about the possibility that war could result from America listing “Israel” as the country of birth of a person born in Jerusalem.
“Let’s assume that a dozen nations said this designation on the passport is – we view as an act of war; if the United States is going to do this, we’re going to view it as an act of war,” Justice Sotomayor said. “Would that then permit the president to ignore Congress...” The court’s transcript indicates the justice let the last word hang in the air.
Zivotofsky’s lawyer – the famed constitutionalist Nathan Lewin – replied, “If Congress determines that in any event this is what the passport should say, then that is Congress...” He was interrupted by one of the justices, and the moment, through no fault of his own, was lost. The answer is – or ought to be – that if it’s war that the Supreme Court fears, then the decision belongs to Congress. For it is expressly to Congress that the Constitution grants the power to declare war in the first place.
There were signs that the Supreme Court was having a hard time deciding even whether to take a second look at the case. Zivotofsky’s petition had been on the docket for its secret conference three times so far this term, and no decision had emerged. But the court finally granted certiorari, setting the stage for a final showdown. The consequences are potentially huge – not only for Israel, but also for other countries at a time when we have an administration that wants to retreat overseas and a Congress that doesn’t.
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.