by Mitchell Plitnick

Return trips to the Supreme Court are not unheard of, but they’re not particularly common either. Should we be surprised that a case involving Israel would get a second hearing?

The case in question is Zivotofsky v Kerry. In its former incarnation in 2012, it was Zivotofsky v Clinton. The question at hand is whether twelve-year-old Menachem Zivotofsky, who was born in Jerusalem but is a United States citizen, may put “Israel” as the country of his birth on his passport after “Jerusalem”. At present, US citizens born in Jerusalem simply have Jerusalem, and no country listed on their passport. At first blush, this may seem a trivial matter, but writing “Jerusalem, Israel” is problematic, because it implies that Jerusalem belongs to Israel.

This is not a policy specific to Jerusalem. Such a designation implies US support or opposition to a claim of sovereignty. It applies everywhere the US does not want to take a side on a territorial issue.

Even without the special significance Jerusalem holds to the three Abrahamic religions, this is an important prerogative of the president. He is tasked with leading and carrying out foreign policy. But Congress, which holds both the purse strings and the power to declare war, has always tussled with the executive branch over where each of their powers ends in this arena. The fight is especially taxing over Israel, whose supporters in the United States wield huge power in Congress, but considerably less over the executive branch.

So, it comes as no surprise that, in 2002, AIPAC (the American Israel Public Affairs Committee) was able to easily slide through a provision in the State Department’s funding bill that singled out Israel, and specifically Jerusalem, for a special exception. The bill provided that “for purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

The vote in the Senate on this bill was unanimous and overwhelming (352-73) in the House of Representatives. But President George W. Bush declared, in what is known as a “signing statement,” that the Jerusalem provision reaches into his purview, and he considered it advisory rather than mandatory. His Secretary of State, Colin Powell, agreed, as did Bush’s successor, Barack Obama and both of his Secretaries of State.

The astute reader might have spotted a rather stark bit of hypocrisy here. Obama’s Secretaries of State, Hillary Clinton and John Kerry, agree with his opposition to Jerusalem being designated as part of Israel for the purposes of US passports. But both of them were Senators in 2002, and both dutifully agreed with the unanimous consent with which the State Department funding bill was passed. It is the difference between being an elected official, and therefore subject to the full pressure a powerful lobby can exert, and a presidential appointee.

In 2012, the Supreme Court initially was asked to rule on the Court of Appeals’ judgment that Zivotofsky’s case was a “political question” that must be dealt with between the president and Congress. The Court reversed that decision and said it was appropriate for this to be decided by judges. Shockingly, the majority was 8-1, with only Stephen Breyer voting against this decision, which rather clearly turns reality on its head.

The majority opinion was written by Chief Justice John Roberts. His reasoning was that “The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution.” But that was not the question at hand. The statute was not being struck down; rather, the president was exercising the authority designated by his predecessor, Bush, objecting to this provision as beyond the scope of Congress’ power. He was therefore treating it as advisory, not striking the law down (which the president has no power to do in any case).

It is hard to see how the more reasonable justices could concur with Roberts’ clearly biased reasoning in this case. The notion that this question is not political is absurd on its face. The US constitution clearly creates a willful tension between Congress and the president in many ways, and this provision was an attempt by Congress to determine United States foreign policy. While the issue of one person’s place of birth on a passport is hardly the stuff that leads to World War III, any official US recognition of Israeli sovereignty over Jerusalem sets a precedent that logically would have to expand. Jerusalem cannot be Israel in US eyes if Israel is not sovereign there, and someone born in Jerusalem could therefore not have been born in Israel, for US recognition purposes. So, this policy would have grave and immediate implications on the ground as well as set a precedent about the relative power of the executive and legislative branches of the government. What could possibly be more political than that?

But such is the situation when Israel is involved. The Supreme Court is, to be sure, wholly immune to the influence of any lobby. But because Israel gets such special attention from Congress and because the very nature of Israel’s occupation of Palestinian lands is so unusual, it presents unusual questions of logic and legal jurisprudence. The waters are even murkier as a result.

A moment ago, I said that the issue of one passport is hardly the stuff that leads to World War III. But Seth Lipsky, the neoconservative editor of the New York Sun, warns that it just might lead there. Lipsky doesn’t bother explaining how that will come about, no doubt intentionally leaving his readers to fill in the blanks with images of crazed Muslims, especially Arabs, launching attacks on the United States over the issue.

But Lipsky does a service with a misleading citation of Justice Sonia Sotomayor, who concurred with Roberts’ opinion in 2012, but with some reservations. Lipsky says “…the World War III question…was first posed by Justice Sonia Sotomayor, who asked point-blank about the possibility that war could result from America listing “Israel” as the country of birth of a person born in Jerusalem.”

Lipsky then proceeds to quote Sotomayor: “Let’s assume that a dozen nations said this designation on the passport is – we view as an act of war; if the United States is going to do this, we’re going to view it as an act of war. Would that then permit the president to ignore Congress…”

It seems Lipsky is well supported, but in fact, Sotomayor was making the opposite point. This exchange was about the State Department’s argument that putting “Israel” as the birthplace of a US citizen might lead to a “misperception” of US policy and Sotomayor was bringing an extreme hypothetical to demonstrate that the lawyer’s argument was about the issue of misperception, not to raise the specter of World War III coming about due to the passport case. She wanted to clarify that the argument being made was that Congress has control of foreign policy, as Justice Antonin Scalia had posited earlier in the proceedings. So, it wasn’t about apocalyptic visions, but rather about what is wise for foreign policy and the US’ own domestic structure.

Lipsky’s willful distortion here tells us much about the supporters of this law, which is just as deceptive in its attempt to allow Congress to dictate policy on Israel and to take constitutional authority away from the president who, whether it is Bush or Obama, will be guided more by strategy than political pressure than Congress is (which, to be sure, isn’t saying much).

Of greatest immediate importance is the potential for this ruling to break the ground of an official and legal US imprimatur on Israeli control of Jerusalem. No, that won’t lead to World War III, and probably won’t lead to war at all. But it will cause an enormous stir throughout the Muslim world, and it will further water down any repairs President Obama has been able to make to the United States’ image in that world after the Bush administration’s crusades in Iraq and Afghanistan.

One can’t be very optimistic. This court has made a lot of bad decisions. Its initial reversal of the Court of Appeals’ correct ruling that this was not a matter for the courts was one. Damaging the United States’ standing even further would be another. Tensions over Jerusalem are escalating right now, with confrontations at the Dome of the Rock getting worse. Adding fuel underneath that pressure cooker is a very bad idea. It is, in fact, precisely for such reasons that the Supreme Court is not supposed to meddle in politics. And, one might add, why a Congress that is beholden to money and other pressures that overwhelm good judgment and common sense, is the least suited to determine foreign policy in the best circumstances.

Dealing with Israel and its powerful domestic lobby is pretty far from the best of circumstances.

Photo: US President Barack Obama greets the Supreme Court Justices prior to delivering his State of the Union speech on Capitol Hill January 25, 2011 in Washington, DC.