Analysis: US Supreme Court won’t save law to put ‘Israel’ on passports a second time

In terms of who gets to decide foreign policy regarding registration of the word “Israel” on a passport, the Supreme Court is likely to uphold appeals court’s ruling that law unconstitutionally infringed on power of president.

Jerusalem Day521 (photo credit: NATI SHOHAT / FLASH 90)
Jerusalem Day521
(photo credit: NATI SHOHAT / FLASH 90)
The US District of Columbia Appeals Court ruling on Tuesday declared a 2002 federal law unconstitutional that directed the State Department to let US citizens born in Jerusalem register their birthplace as “Israel” on their passports.
The same appeals court tried to stop the march toward placing the word “Israel” on passports once before, and in 2011, the US Supreme Court swept in highly unexpectedly to put the train back on track.
With the Zivotofsky family, who started the march by suing the State Department for not registering “Israel” on the passport of their son, Menahem Zivotofsky, promising to appeal again to the US Supreme Court, some under-informed observers may assume that the court will come in again to “save the day.” They would likely be mistaken.
The why has to do with esoteric aspects of legal doctrines like the “political question doctrine” and the “separation of powers doctrine,” as well as broader political trends – but the endgame is likely to be a final end to a long-fought march.
Back to a brief explanation of the legal issues.
The first time the US Supreme Court saved the Zivotoskys’ case from being dismissed, really all it said for the purposes of this case was that the Zivotofskys had a right for the substance of their arguments to be heard and decided by a court. In contrast, the appeals court had said it was not even willing to open the door, since the case implicated foreign policy issues that courts should keep away from.
As a bit of a side note, the decision was a potential bombshell opening pandora’s box in terms of the court being ready to weigh in on other foreign policy matters. One commentator even suggested that the court, in the extreme, could use this precedent to intervene in a conflict between the US president and Congress over low-grade military operations, absent a declared war.
But for this specific case, all the US Supreme Court’s first decision did was open the door to debate the crux of the issue.
In terms of the substantive issue of who gets to decide US foreign policy regarding registration of the word “Israel” on a passport, the Supreme Court is likely to uphold the appeals court’s ruling that the federal law unconstitutionally infringed on the power of the president to decide what foreign countries to recognize and under what terms.
Or put differently, the court is likely to say that because the president controls foreign policy about whether Jerusalem will be viewed as formally part of Israel, pending any resolution of the Arab-Israeli conflict and the fulfillment of UN Resolution 242 that governs negotiations – he also gets the last say on what appears under the entry for country for a birth in Jerusalem on a US passport.
One can see hints of this approach already in the court’s 2011 opinion in its references to presidential power and foreign policy.
The court may even have let the case in the door to sternly rebuke Congress for “invading” the president’s control of foreign policy.
The only hope for the Zivotofskys would be if a different approach, hinted to by Justice Samuel Alito in his concurring opinion in 2011, won the day.
Alito did not decide on the main issue, but noted in passing that the president and Congress might share “measures of authority” in this specific area of foreign policy governing what to write on the passport.
The court would need to separate the president’s clear power of whether to recognize Jerusalem as capital of Israel, which no president Democrat or Republican has been willing to do, from the specific issue of what is registered on a passport.
The problem with separating the powers is that the registration is performed through the State Department, an office controlled by the president.
Traditionally, at most Congress can perform oversight and threaten to withhold funding to negotiate the president into accepting portions of congressional goals.
Still, until the US Supreme Court rules, the expected appeal keeps the issue alive at least somewhat longer, at least for one final, decisive round.