Bloomberg News

Passport Clash at High Court May Shape Foreign Policy Power

November 09, 2011

(Updates with arguments starting in fourth paragraph.)

Nov. 7 (Bloomberg) -- The U.S. Supreme Court debated whether an American boy’s passport should list his birthplace as Jerusalem or Israel in a case that may redefine the foreign- policy roles of the president and Congress.

The hour-long argument session stemmed from a request by the 9-year-old’s parents to have his passport list Israel even though the State Department’s longstanding policy has been to designate Jerusalem as the place of birth in such cases. The U.S. doesn’t take a position in the international dispute over the city’s status.

The parents, Ari and Naomi Zivotofsky, point to a 2002 statute that would give passport holders or their parents the option of using Israel as the designation. The law has sparked a constitutional clash, with the Obama administration contending that Congress is infringing on the president’s exclusive power to recognize foreign sovereigns and determine their territorial boundaries.

“This is an area in which the executive’s got to make the judgment because it’s of paramount importance that the nation speak with one voice,” argued U.S. Solicitor General Donald Verrilli, President Barack Obama’s top high court advocate.

Several of the justices suggested they were of mixed minds, aiming skeptical questions at both sides. Justice Antonin Scalia said that the president’s leading role in shaping foreign policy didn’t necessarily exclude Congress altogether.

’Sole Instrument’

“Our cases say repeatedly that the president is the sole instrument of the United States for the conduct of foreign policy, but to be the sole instrument and to determine the foreign policy are two quite different things,” Scalia said.

Justice Stephen Breyer said he could think of “very, very few cases” in which the court had said a president could act contrary to a statute.

The Zivotofsky family’s lawyer, Nathan Lewin, argued that any presidential interest in the place-of-birth designation was a “trivial” one.

“All that happens with this statute is that 50,000 American citizens have the same passport as 100,000 other American citizens who were born in Tel Aviv or Haifa,” Lewin argued. The child at issue in the case, Menachem Binyamin Zivotofsky, was born in 2002.

Chief Justice John Roberts questioned whether the court should second-guess the president’s conclusion that a particular passport designation would cause a political backlash.

He said the court in effect would be telling the president, “We know foreign policy better. We don’t think it’s going to be a big deal.”

The case is Zivotofsky v. Clinton, 10-699.

--Editors: Justin Blum, Bob Drummond

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.


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