The Trump Passport
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.
How fitting it would be were President Trump to bring in for a photo-op Wednesday with Prime Minister Netanyahu the 14-year-old boy named Menachem Binyamin Zivotofsky. He is the American lad who was born in 2002 at Jerusalem and sought to be issued a passport listing his birthplace as Israel. Although Congress had explicitly given him that option, the State Department refused. Mr. Zivotofsky ended up going to the Supreme Court thrice, only to lose. The court said only the president could decide the matter.
Well, guess who’s president now. We’re not suggesting this will happen. But by our lights, Mr. Zivotofsky’s passport is the most logical and easiest first step for the new president to start stepping up in respect of Jerusalem. Congress has already required — in 1995, no less — that our embassy to be moved to Jerusalem absent a presidential waiver. Such waivers have been inked by Presidents Clinton, W. Bush and Obama every six months since then. The last waiver is still in effect. Moving the embassy could involve all sorts of construction.
In respect of the passport, though, no waiver is involved. No building is necessary. No security perimeters. No waiver, though, would be required to give young Mr. Zivotosky his passport. And as far as the Supreme Court of the United States is concerned, Congress hasn’t got any more to say about it than the Man in the Moon — if that. At least not in respect of Jerusalem. Since America’s passport policy in respect of Jerusalem was already in existence for some time, the Court ruled in effect, Congress couldn’t “command” the president to change it.
The opinion was written by Justice Kennedy. It was one of the dodgiest opinions ever to emerge from his infuriating quill. He insisted that the Court wasn’t questioning “the substantial powers of Congress over foreign affairs in general or passports in particular.” The case, he perambulated,* was confined to the exclusive power of the President to “control recognition determinations” and not even all of those. Congress, he wrote, “cannot command the President to contradict an earlier recognition determination in the issuance of passports.”
So the ball’s in Mr. Trump’s court. Not even the Democratic People’s Republic of the State of Washington can stop him if he wants to give young Mr. Zivotofsky a passport listing his birthplace as Israel. The vote in the Senate to entitle an American born in Jerusalem to such a passport was unanimous. Both Hillary Clinton and John Kerry voted for it, even though they later denied the lad the passport he wanted. Mr. Trump could invite Mrs. Clinton and Mr. Kerry to join the photo-op with Mr. Netanyahu, when the promise to Mr. Zivotofsky is redeemed with a Trump passport.
* Usage of this word, according to Google, peaked around 1850.