Argument preview: Court edges close to the Mideast cauldron

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Scotus Blog: Argument preview: Court edges close to the Mideast cauldron

By Lyle Denniston on Nov 1, 2014 at 12:02 am

At 10 a.m. Monday, the Supreme Court opens its next public session with a one-hour argument on a core constitutional dispute over the powers of Congress and the presidency, in the case of Zivotofsky v. Kerry. Arguing for a family whose lawsuit is at the center of that controversy will be Alyza D. Lewin of the Washington, D.C., firm of Lewin & Lewin. U.S. Solicitor General Donald B. Verrilli, Jr., will argue for Secretary of State John Kerry and for the White House. Each advocate will have a half-hour of time.

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Background

In no area of national policy does the Supreme Court feel – and act – more like an outsider than in foreign relations. The Court is entirely content to leave that almost entirely to Congress and the presidency. Next week, however, the Court will move — in a symbolic way — close to the boiling cauldron of the Mideast, where peace seems always to elude Israel and its Arab neighbors and war is never very far away.

And it does so in a case of a boy who has grown to age twelve immersed in a lawsuit of profound constitutional importance

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2Nov

Supreme Court to hear case on presidential ‘signing statements’

 

A constitutional challenge to the president’s long-standing claim of exclusive power over foreign affairs comes before the Supreme Court this week wrapped in an 11-year-old dispute over a single word in the passport of an American boy born in Jerusalem.

 

The justices will hear arguments Monday over one of former President George W. Bush’s “signing statements” in a case that could decide when, if ever, the nation’s chief executive may ignore a law passed by Congress.

http://howappealing.abovethelaw.com/110214.html

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Three Reasons Why Jerusalem Passport Statute Survives Zivotofsky

by Peter Spiro

Everyone is ramping up for Monday’s Supreme Court argument in Zivotofsky v. Kerry, with notable entries from Jack Goldsmith on Lawfare, Marty Lederman on Just Security, and Eugene Kontorovich on Volokh. They have been debating a narrow doctrinal basis (suggested by the SG and pressed by Jack) for striking down the law as a kind of passport regulation beyond Congress’ power under Article I.

 

A little more on that below, but in the meantime, here are three atmospheric factors that point to sustaining the statute, none of which will be mentioned in the decision.

 

1. Passports would say “Israel,” not “Jerusalem, Israel”. Along the way, Zivotofsky modified his demand from the latter to the former. If he wins, his passport will list his place of birth simply as “Israel”. This makes a huge difference in the optics, literally. There are already an estimated 100,000 US passports that list “Israel” as place of birth; upholding the passport measure will only increase the number. None will say “Jerusalem, Israel.”

http://opiniojuris.org/2014/10/31/three-reasons-jerusalem-passport-statute-survives-zivotofsky/

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Lyle Denniston Reporter

Posted Mon, November 3rd, 2014 1:28 pm

 

Argument analysis: Playing “diplomat for a day”

 

Analysis

It was quite difficult on Monday to remember that the Supreme Court has serious doubts about its own competence in the field of foreign relations. Justice after Justice, sort of playing “diplomat for a day,” had suggestions on how the federal government might try to avoid what it considers would be a serious embarrassment in Mideast policy.

 

The most intriguing, as the Court heard the case of Zivotofsky v. Kerry, came from Justice Anthony M. Kennedy who — once again — might well hold the deciding vote on the outcome of a major constitutional clash between Congress and the presidency. A simple official disclaimer of what message a passport does not convey might be the answer, Kennedy suggested.

 

All of the members of the Court (except Justice Clarence Thomas, who usually says nothing in oral argument) were energetically engaged in exploring the question of whether Congress acted unconstitutionally a decade ago in ordering the State Department to let U.S. citizens born in Jerusalem list Israel as their place of birth on their U.S. passports, if that was their desire

http://www.scotusblog.com/2014/11/argument-analysis-playing-diplomat-for-a-day/

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Jerusalem passport case divides Court: In Plain English

By Amy Howe on Nov 4, 2014 at 7:55 am

We often think of the Supreme Court as the arbiter of distinctly national disputes – for example, whether the Affordable Care Act can require all of us to obtain health insurance or pay a penalty, or whether public universities can consider race as one factor in their admissions process. But yesterday the Court waded into a dispute that is playing out on a global stage: whether a U.S. citizen born in Jerusalem can choose to have his place of birth listed as “Israel” on his passport. The answer, according to the U.S. government, could have a potentially explosive impact on the U.S.’s role in the Middle East peace process, and possibly even on the peace process itself. Let’s talk about Zivotofsky v. Kerry and yesterday’s argument in Plain English.

http://www.scotusblog.com/2014/11/jerusalem-passport-case-divides-court-in-plain-english/#more-220819

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An Unbalanced View of the Zivotofsky Case

Rick Richman | @jpundit11.07.2014 - 3:30 PM

In today’s Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey – who served in the Justice Department and the White House Counsel’s office during the Reagan and George H. W. Bush administrations – propose a “balancing” test to resolve the Zivotofskypassport case. They acknowledge Congress can regulate passports and has given Jerusalem-born Americans the right, if they request it, to have “Israel” on their passports as their place of birth. They argue, however, that (1) the “harm” to Congress would be “small” if its statute were declared unconstitutional, while (2) presidential “recognition authority” would be “severely undercut” if the law were implemented. Both assertions are demonstrably wrong, as Monday’s oral argument made clear.

 

http://www.commentarymagazine.com/2014/11/07/an-unbalanced-view-of-the-zivotofsky-case-jerusalem-passport/#more-853499