Zivotofsky and the Disaggregated State

Transcript of today’s argument here. Scalia, Roberts, and Alito are siding with petitioner (and Congress), Kagan and Sotomoyor are with the Government. Breyer, Ginsburg, and Kennedy didn’t tip their hands clearly one way or the other.

A lot of speech-related framings. Zivotofsky’s lawyer argued that allowing “Israel” as a choice for those born in Jerusalem is a matter of self-identification. Kagan had the best one-liner of the day in response, noting that it is “a very selective vanity plate law” insofar as it doesn’t give Palestinians the same choice. On the other side there was some characterization of the law as imposing “compelled speech” on the Government. Justice Kennedy took care of that with prospective disclaimers that the executive branch could issue, even on the passport itself.

Along those lines, there was this interesting response from Justice Alito to SG Verrelli’s assertion that the statute poses a “very serious risk” of harming US credibility on the sensitive issue of Jerusalem’s status:

Justice Alito: Why would that be so? No matter how this Court decides, everyone will know what the position of the President is. Everyone will know what Congress thought when they passed this legislation. Whatever we do, that’s not going to be changed, and our decision isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.

So why will there be any effect on foreign policy except by people who will misunderstand the situation, either ­­ — either because they really don’t understand it or they will exploit it in some way?

He has a point. One might add that everyone will know that Congress has no idea what it’s doing on foreign policy or anything else, and that “everyone” includes most of the world. Certainly sophisticated foreign government elites — they know that on everything from climate change to the International Criminal Court to human rights, Congress is way, way behind the curve.

That would take care of many contexts but perhaps not this one. There will be some people out there (not sophisticated government elites) who could take the passport policy the wrong way, not knowing that Congress is out to lunch and that US policy has not changed. That’s where the risk comes in. It’s what makes this case less than ideal for adapting the Constitution to the new global dynamic. The Middle East is a throwback to the old world. Arguments like Noah Feldman’s here still make a lot of sense when it comes to Israel-Palestine, even if they don’t make so much sense anywhere else.

But the risk may be small enough that the Court is willing to take it. As Wells Bennett notes, some of the Justices seemed not really to believe the Government’s predictions of dire foreign policy consequences. (On this score it may help them that there doesn’t seem to be a whole lot of back-up evidence.) If the Court rebuffs the executive branch and all hell doesn’t break loose when Zivotofsky and others get their passports, it will undermine all such claims in future cases, and we can expect the Government to get a dwindling bump from the increasingly putative foreign relations power.