Jerusalem Before the Nine
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
The Supreme Court’s decision this morning to take a second look at the so-called Jerusalem passport case no doubt has finally got the attention of the State Department. Rarely has there been a case in which the Arabists at Foggy Bottom have shown a greater condescension to Congress. They are trying to insist that the very Congress that created the American passport can have no say in the terms on which it is issued.
State disputes the authority of the Congress to require it to honor the wishes of an American born in Jerusalem that he be given a passport that says he was born in Israel. State would have us believe that this is an explosive question. It refused such a passport to an infant, Menachem Binyamin Zivotofsky, who was born at Jerusalem in 2002, who brought this case, now known as Zivotofsky v. Kerry. The first time it came before the high court, Justice Sotomayor asked the lad’s lawyer a question that might or might not be theoretical.
What, she asked, if war could result from America listing “Israel” as the country of birth of a person born at Jerusalem. “Let’s assume that a dozen nations said this designation on the passport as we view is an act of war,” Justice Sotomayor asked. “If the United States is going to do this, we’re going to view it as an act of war. Would that then permit the President to ignore Congress’s — ” The court’s transcript indicates the Justice let the last word hang in the air.
What happened next was described this morning in the Haaretz newspaper in Israel by the editor of the Sun. Master Zivotofsky’s lawyer, Nathan Lewin, replied that “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 is war the Court fears, then the decision belongs to the Congress.
The reason for this is that it is expressly to Congress that the Constitution grants the power to declare war in the first place. How, if the consequences of our passport policy are war, would it possibly be logical to exclude the Congress from setting the policy? It is the only branch that can declare war or pay for war or raise an army or provide and maintain a Navy. That power does not belong to the President and it does not belong to the courts. War is a declaration that belongs to the Congress.
The administration has been refusing to move the embassy to Jerusalem even though the Congress that pays for the embassy has stated in no uncertain terms that Jerusalem is Israel’s capital and it wants the embassy there. In the case of the passport dispute, the administration tries to argue that the matter was a political question beyond the reach of the courts. It won on the lower benches, but when it got to the Supreme Court, the Nine reversed.
What the Nine said, in a vote of eight to one, was that the courts weren’t being asked to decide where the capital of Israel is. That is, indeed, a political question. The courts were being asked to decide who decides the political question, Congress or the President. The lower courts left it with the president. Master Zivotofsky turns out to be a heroic fellow, and he’s won a second hearing, and the world will be watching. For Zivotofsky v. Kerry is about more than one boy’s love of Israel.
That, in and of itself, would make it plenty compelling. But it is also about how much say the people of America are going to have in the conduct of their own foreign policy. Is it going to be left to a permanent bureaucracy of civil servants who are clearly hostile to the express wishes of the elected legislature? We like the way it was put by The Great Scalia the last time the Nine sat on this matter. He noted that case law reckons that the president is the “sole instrument,” to use Justice Scalia’s phrase, of foreign policy. But he suggested, “there is certainly room” in the precedents for Congress to say “what the country’s instrument is supposed to do.”