In the law as in life, sometimes it’s easier to figure out the answer to a tricky problem by pushing things to their logical limits. At least, that seemed to be the modus operandi of the nine Supreme Court justices at this morning’s hearing in the case of Menachem Zivotofsky, a 9-year-old American citizen born in Jerusalem whose parents want “Israel” listed on his passport as his place of birth. The crux of the issue is whether Congress can override the president when it disagrees with the president about how to conduct foreign affairs—in this case, about whether to recognize that Jerusalem is in fact in Israel, something Congress has directed the State Department to allow people like Menachem to claim, despite the insistence of both George W. Bush and Barack Obama that Congress has no say in the matter.
Justice Stephen Breyer said, explicitly, “The Court does not want to be responsible for deciding whether Jerusalem should be recognized as the capital of Israel.” But Nathan Lewin, Zivotofsky’s lawyer, argued that he was requesting no such thing. Rather, he said, it was only a question of granting the 50,000 or so Americans to whom the law applies the right to note on their U.S. government identification that they were born in Israel—something Taiwanese are allowed to do, for example, even though the U.S. officially doesn’t recognize Taiwan at all.
But then Justice Samuel Alito asked why citizens couldn’t just put down whatever they wanted. Justice Antonin Scalia came in with an assist: what if, he asked, Congress said people born in Jerusalem could put down “Israel, the only democracy in the Middle East” on their passports? “Would that be OK?” Scalia growled. “It would be a foolish statute,” Lewin responded. Nevertheless, he said, ultimately his answer was yes, Congress could direct the president to have the State Department allow citizens to list “Israel, the only democracy in the Middle East” as their place of birth.
And then things took a darker, and more plausible, turn. “What if recognition of a breakaway province will clearly provoke a war,” Scalia asked, during the government’s response. “Can Congress stop the president?” “I don’t think that’s useful,” replied the government’s lawyer. “Let’s say we have a foolish president,” Scalia fired back, before adding, “something that has never happened in the history of this country.” The government’s attorney said, in that case, it was still up to the president what to do.
No one said “Palestine,” but, especially in light of the Palestinian push for recognition at the United Nations and the way the White House and Congress have reacted to it, everyone had to be thinking it. A few minutes later, during Lewin’s rebuttal, Justice Sonia Sotomayor asked him the same thing. “What if a dozen nations say, ‘If the United States does this, it’s an act of war?’” she asked. “Can the president override Congress?” Lewin paused, and then conceded that what he was arguing holds for little Menachem’s passport would logically have to go for bigger things as well. “When the Congress disapproves of what the president does,” he said, “the Congress prevails.” The justices thanked him for his time, and moved on to the next case.