A boy's passport and justices with minimal foreign policy expertise could decide American policy on Jerusalem

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Marco Werman: And here’s something I learned this week about the Holy City -- if you’re an American who’s born there, your US passport must list your place of birth as Jerusalem. Not Israel, not West Bank, just Jerusalem. There’s a case before the US Supreme Court about this in fact, and when a lawyer in the case suggested this is not a big, one of the justices had a telling response.


Dahlia Lithwick: Elena Kagan said “Can I just say this seems a particularly unfortunate week to be making the kind of ‘Oh, it’s no big deal’ argument’?” And she went on to say “History suggests that everything is a big deal with respect to the status of Jerusalem, and right now Jerusalem is a tinderbox.”


Werman: That’s Dahlia Lithwick who writes about the courts and the law for Slate. She says listing just Jerusalem on passports has been US law since 1948.


Lithwick: Since the Truman Administration, the policy has been that the United States wants to stay neutral on this question, feels it can’t be neutral and that the ultimate status of who has sovereignty over Jerusalem is going to be negotiated someday through peace talks, but until that time, the posture of the US government needs to be absolutely neutrality. Thus, Jerusalem.


Werman: How does a 12-year-old boy then, Menachem Zivotofsky, get tangled up in this rule, this debate?


Lithwick: Well, because in 2002, the United States Congress, who has done other things -- they have passed legislation that wants to move the embassy, which is now in Tel Aviv, to Jerusalem; Congress wants to take a stronger stand and say that Jerusalem is, in fact, the capital of Israel. So, of a peace, with that kind of legislation, in 2002 they enacted a law that sad that Congress was going to almost override the president on this question and that the State Department had to record the place of birth as Jerusalem, Israel, or Israel in the passports of any American children who were born in Jerusalem if their parents so asked. So, Congress kind of overrides this longstanding State Department policy and President Bush signs that law, but he attaches a signing statement, as he was wont to do, saying “We’re not going to enforce this particular provision because it intrudes on presidential powers.”


Werman: Back to Menachem Zivotofsky.


Lithwick: So, Menachem Zivotofsky is born in Jerusalem in 2002, the same exact year that the statute is passed, and his parents say “Look, there’s a law and we petitioned the State Department,  he’s an American citizen, his parents are Americans, we want his passport to say Jerusalem, Israel.” The State Department sends back a polite letter that says “No.” They litigate this case up and down, it’s gone actually to the Supreme Case once before, it’s gone back to the Court of Appeals in Washington, D.C. and back at the Supreme Court on monday for this ultimate issue of “Who gets to decide United States foreign policy when it comes to passports? Congress or the president?” So, it is a big, big separation of powers question, and Menachem Zivotofsky, age 12, is in the middle of it.


Werman: What’s been the debate like at the Supreme Court? I gather some of the justices have been squabbling over this.


Lithwick: It won’t surprise you at all to hear that it kind of sorts out 4 to 4, with Justice Kennedy in the middle. For me, the great moment at the oral argument is where Justice Scalia, questioning the attorneys in this case, says “Hey, if it’s within Congress’ power, what difference does it make if it antagonizes foreign countries?” Congress has the right to take a different stance from the president if they so choose, and Scalia is very, very bullish on the idea that if that undermines the State Department’s authority to set foreign policy, so be it. The question is “Who is in charge of passports?”


Werman: For Scalia to say “What’s the problem with antagonizing foreign countries?” what kind of pushback did he get from more liberal justices on that?


Lithwick: Well, it was just a very, very interesting, larger question about “Does it really antagonize foreign countries?” In one sense, you have the problem of the justices are the worst situated branch of government to making these big, big decisions about the nature of foreign policy and Justice Stephen Breyer kept saying “I’m not a foreign policy expert. If the State Department says this is going to create a huge kerfuffle, we should take that seriously.” Donald Verrilli, the US Solicitor General, arguing on behalf of the Obama Administration, said “Listen, this is nuts. When this was signed in 2002 with the signing statement, there were actual riots. We saw an intense Palestinian pushback. So, it is insane to suggest that we can just do this without any repercussions in the Middle East.” John Roberts was really interesting. The Chief Justice said “Well, maybe that’s because you all made such a big deal of it.” When Bush signed it, he called it a “self-fulfilling prophecy” and said “If the administration hadn’t made such a big deal out of the fact that there was going to be blowback, there wouldn’t have been blowback.” So, buried underneath this very, very doctrinally interesting question about separation of powers and whether the president has this “recognition power” and whether the Congress has this “passport power,” there were really interesting questions about Middle East policy that the justices both admitted they didn’t have the answers to, but they were forced to make a determination.


Werman: Dahlia Lithwick writes about the courts and the law for Slate. Thank you very much.


Lithwick: Thank you for having me.