Jerusalem in Court
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 certainly made short work of Secretary of State Clinton’s claim that the courts and the Congress have no business meddling in how she refers to Jerusalem in passports issued to Americans born in the capital of Israel. The State Department has been refusing to enforce a law, passed in 2002 by an overwhelming vote in the Congress, giving all Americans born in Jerusalem the right to have their birthplace listed on official documents as “Israel.” The department was challenged by an infant named Menachem Binyamin Zivotofsky, who’d been born at Jerusalem and whose parents wanted him to have a passport listing his birthplace as Israel. The state department claimed the matter was a political question and therefore beyond the reach of the courts. What happened today is that the Supreme Court finally rejected that argument in no uncertain terms.
It did so by a vote of eight to one, sending the matter back to the lower courts and telling them to do their duty and determine whether Congress had the power under the Constitution to establish the wording in the passport. It is a satisfying moment for those of us who are invested in this issue and have been following Master Zivotofsky’s quest, which has taken up most of his life (he is now nine years old). It’s not a Republican or a Democratic feud. Presidents Bush and Obama both took the position that the matter was a political question beyond the reach of the courts. It was, not to put too fine a point on it, a dodge. But at least the presidents were sticking up for the government branch they headed. What could be said for the judges of the lower courts, who dodged and weaved and whined about how the matter was beyond their competence and reach?
The Chief Justice of America, John Roberts, pointed out, in the opinion for the majority, that the courts are not being asked to decide whether Jerusalem is the capital of Israel. They are being asked to decide whether Congress had the constitutional authority to pass the law to begin with. So now the matter will go back to the judges who ride the District of Columbia Circuit of the United States Court of Appeals. It is they who will be ruling on the constitutional merits. And no doubt the Chief Justice will have put some starch in them. “Resolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.”
In other words, the lower courts have been told to stop fooling around. So we will see what the lower courts make of it. Did the Congress over-reach when it passed a law affecting the wording of the passport? A number of experts reckon that the president, with his power to receive ambassadors, has the sole authority in respect of foreign affairs. But this has been roundly disputed by Master Zivotofsky’s counselor, Nathan Lewin, who has pointed out all manner of ways in which Congress has been involved in foreign affairs, including being consulted regularly in the early years of the republic in respect of the recognition power. In any event, Mr. Lewin has argued that this case doesn’t necessarily involve such grand questions, but simply the wording of a passport congress pays for.
There’s also the fact, as we pointed out in an earlier editorial, that Mrs. Clinton actually voted, when she was a senator, for the law she is now refusing to carry out. The courts will have to dig down deep and decide whether Congress — with all the foreign aid it votes, with all the weapons it funds and permits to be exported, with all the ambassadors the Senate confirms or rejects — is to have no say in the way Master Zivotofsky’s birthplace is listed on passports. It is too soon to say what the lower courts will decide. But it is not too soon to say that in the argument over this case the Supreme Court asked some tough questions that impressed even the New York Times. It warned in an editorial back in November that the courts could give the Obama administration unchecked power. It quoted Justice Sotomayor as observing: “If we call this a political question and don’t address the merits, the outcome is that the president is saying that he’s entitled to ignore the Congress.”