21 Apr Supreme Court Takes Jerusalem Passport Case on the Merits
NY Times dispatch here. The Supreme Court will now confront the question of whether Congress can force the Secretary of State to include the birthplace “Jerusalem, Israel” at a U.S. citizen’s option. This could be a huge case or a not-so-huge case. If the Court affirms the D.C. Circuit’s ruling below and strikes down legislation purporting to constrain the Secretary of State’s passport authority, the ruling would be important but hardly epochal. That would protect the president’s authority over foreign relations, and fit neatly into a doctrinal tradition dating back at least a century. It is something new for the Court to get to the merits of the question — that’s why the decision in Zivotofsky I itself marked something of a watershed. If the Court accepts expansive executive branch powers, the jurisprudential gun remains loaded but no shots get fired.
But if the Court upholds the law, it will be a major departure from that tradition. The passport case implicates a genuinely sensitive issue of foreign relations. If the Court forces the State Department into something like formal acknowledgement of Israeli sovereignty over Jerusalem, who knows what would follow on the ground. This isn’t a case like Medellin, which predictably upset Mexico at the same time that our relations predictably weathered any such upset. Nor would it play out like Bond, which even if it restricts the Treaty Power will hardly be noticed by foreign audiences. To use the vocabulary of the foreign relations canon, a Supreme Court ruling against the executive branch in Zivotofsky could severely “embarrass” the President in the conduct of foreign relations. Think unruly crowds outside U.S. embassies.
That would have been inconceivable 20 years ago. But foreign relations law is being normalized. (For an excellent take on the shift, see Harlan Cohen’s piece here.) Foreign affairs has long been immune to judicial activism; maybe no longer. The Court may still hesitate to the extent it sees some real, even uncabinable, damage to the Middle East peace process in siding with Congress on the question. The easier path would have been to duck the case altogether. By accepting review, it may already have tipped its hand in a new direction.