Zivitofsky v. Kerry
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Antonin Scalia, Sonia Sotomayor
Interviewee(s): Alyza D. Lewin, Donald B. Verrilli, Jr.

John G. Roberts, Jr.: We'll hear argument first in Case 13628, Zivotofsky versus Kerry--

Ms. Lewin.

Alyza D. Lewin: Mr. Chief Justice, and may it please the Court:

How an American is identified in his or her passport or U.S. Consular Report of Birth Abroad, including the place of birth designation, does not amount to formal recognition by the United States of that designated location's sovereign status.

This is the principal reason why Congress's law authorizing Jerusalem-born citizens to carry passports that say they were born in Israel is a legitimate congressional exercise of Congress's power to regulate foreign commerce, naturaliza--

Anthony M. Kennedy: Suppose that -- suppose that the President and the Secretary of State put on the passport the place of birth -- I've written it out -- the place of birth on this Jerusalem-born citizen's passport has been listed as Israel at the holder's request.

This designation is neither an acknowledgment nor a declaration by the Department of State or the President of the United States that Jerusalem is within the borders of the State of Israel.

Could the President, under existing statute, and the Secretary of State, under existing statute, put that statement on the passport?

Alyza D. Lewin: --Yes, Your Honor, they could put that statement on the passport.

But we--

Elena Kagan: But if -- if -- if -- Congress then passed a law saying that that statement had to come off the passport, could Congress do that?

Alyza D. Lewin: --Yes, Justice Kagan.

The -- the -- we -- there's no restriction on the initial granting of recognition by the President.

But by the same token, the Congress has the ability afterwards, upon deliberation, to decide if they disagree with that recognition.

But in the case that Justice Kennedy suggested--

Sonia Sotomayor: Has that ever happened?

Alyza D. Lewin: --Yes.

Sonia Sotomayor: In the history of the United States where Congress asked the President to declare that it was not recognizing someone, has Congress ever recognized it?

Alyza D. Lewin: Yes, Justice Sotomayor.

In -- in 1898, Congress passed a joint resolution for the recognition of the independence of the people of Cuba over the initial opposition of President McKinley, and that ended up recognizing the independence of Cuba.

Anthony M. Kennedy: If you were careful to say at the outset that this is not recognition, the court of appeals decision, I think it was in the Judge Tabor concurrence, said that both parties urge upon us that they -- that the power of recognition is involved here and Congress has done it.

And then, of course, the Attorney General takes takes -- the opposite position that the that -- this, A, this is recognition and, B, that's why it's void.

Did you change your position here, or am I just misinterpreting the way this -- the court of appeals discussed it?

Alyza D. Lewin: We've provided to the Court alternative options for resolving this issue.

Our primary position, as I said at the outset, is that what is written in this statute does not amount to a formal recognition of sovereignty because the language of the statute itself is very narrow.

It begins by saying that, for the purposes of, for the narrow purposes of recording a place of birth on a passport or a Consular Report of Birth Abroad, that is where -- what this statute provides for.

It also does not state that in all circumstances you have to list Israel as the place of birth.

It is merely giving the individual choice.

Ruth Bader Ginsburg: The the -- does -- the provision is part of a section, Section 214.

And I think you're trying to read G, and so it is disassociated from the purpose that's expressed throughout 214, that is, that Jerusalem is the capital of Israel.

Congress said that, and you -- you are trying to deal with a piece of one section without regard to the -- to the thrust of the whole provision, that Congress has said we think Jerusalem is the capital of Israel.

Alyza D. Lewin: Justice Ginsburg, the -- that is correct.

This section of the statute should be reviewed and the constitutionality of it be determined on its own.

But the Court should look not at what Congress may have intended by the entire section but, rather, what this section actually did.

And this section, as I said, gives the individuals a choice and does not confer formal recognition.

There are benefits that come with formal recognition.

Stephen G. Breyer: You say that.

But the -- you say -- I've heard exactly what you said.

And I think that's certainly a reasonable position.

You could read this and say it doesn't really say anything about recognizing anything.

But the Solicitor General of the United States, after conferring with the State Department, says,

"Since Israel's founding, every President has adhered to the position that the status of Jerusalem should not be unilaterally determined by a party. "

and he adds,

"by requiring the President to contradict his recognition position regarding Jerusalem in official communications with foreign sovereigns, the section unconstitutionally encroaches on the President's core recognition authority. "

So he has a different view.

He thinks it is our policy not to recognize Jerusalem as the capital, which you apparently agree with, and he thinks that this does have some tendency at least to suggest the contrary.

Now, I'm a judge.

I'm not a foreign affairs expert.

And when he tells me that, and they are foreign affairs experts in the State Department, how can I say that I'm right even if I agree with you, and they, who are in charge of foreign affairs, are wrong when they make those two statements, which certainly sound plausible.

Alyza D. Lewin: Two points, Justice Breyer.

The first is that what goes on a -- on passport as a place of birth is not tantamount to recognizing foreign sovereignty.

Taiwan is a perfect example.

The State Department puts--

Ruth Bader Ginsburg: I want -- and I must interject at this point because you emphasize the Taiwan example and it seems to me it's most distinguishable.

Taiwan and China maintained from the beginning there is only one China, and so Taiwan is a place name.

It's a region.

It's in no way recognizing, no -- there's no question of recognition in the Taiwan event.

Alyza D. Lewin: --That's correct, Justice Ginsburg.

So what you put on the passport does not automatically confer recognition--

Stephen G. Breyer: No, no, to go back to my question--

Alyza D. Lewin: --But the question--

Stephen G. Breyer: --which I'd like an answer to.

I don't think that Taiwan is a counterexample since the policy of the State Department in that thing that's FAM, which is the Foreign Affairs Manual, says pretty clearly that if there's a dispute about the larger power, i.e., China, you always can put in your passport the smaller place of birth, like a city or I would think your Taiwan.

So I don't hear the Department or I guess I'm saying the experts saying that the Taiwan example conflicted with their policy.

Antonin Scalia: China objected to that.

Did China not object to it?

Stephen G. Breyer: China may have done -- I want an answer to this question--

Alyza D. Lewin: --Yes, that is correct, Justice Scalia.

Stephen G. Breyer: --not whether China objected or didn't object or so forth.

I'm not interested in that.

I'm interested in what we, as judges, do when the State Department and those charged say those other things were not contrary to our recognition policy.

That's what they think, and this is.

Alyza D. Lewin: So one last point on Taiwan--

Stephen G. Breyer: I'd like the first point.

What am I supposed to do in respect to that?

Alyza D. Lewin: --Well, the first -- the first point is that this -- what goes on the passport does not confer the benefits of formal recognition of sovereignty.

This does not entitle the government, the foreign government to bring cases in -- in our courts, to the protection of sovereign immunity or to the act of -- act of state doctrine.

What goes on a passport, therefore, does not amount to sovereign recognition.

Antonin Scalia: Ms. Lewin, I -- I thought your position was you couldn't care less if the State Department thinks that this is going to interfere with our relations with the Palestinians, that Congress is entitled to do what it is authorized to do under the Constitution, even when that contradicts -- let's assume they can't recognize a country, but they can declare war on a country, can't they--

Alyza D. Lewin: Yes.

Antonin Scalia: --that the State Department has decided to recognize and -- and to be friendly with?

Alyza D. Lewin: Yes, Justice Scalia.

Antonin Scalia: Congress can do that.

Alyza D. Lewin: That is correct.

Congress can do that.

And the test, if there is a conflict 20--

Antonin Scalia: And you say can do the same here.

And -- and the fact that the State Department doesn't like the fact that it makes the Palestinians angry is irrelevant.

Alyza D. Lewin: --Absolutely, Justice Scalia.

That is correct and--

Stephen G. Breyer: If you take that position, which explains it, then what do you think of Justice Story who writes in 1833 that,

"The exercise of the prerogative of acknowledging new nations and ministers. "

--and he makes clear that involves whether a city or a region is part of a country, et cetera, he says, it's an executive function.

Some argue, as we -- I think we've just heard, that Congress could make that decision, too, but that hasn't been decided.

And he concludes that,

"A power so extensive in its reach over our foreign relations could not properly be conferred on any other than the Executive Department will admit of little doubt. "

Alyza D. Lewin: --Justice--

Stephen G. Breyer: So he is saying, of course, you have to have one person deciding such a thing, and that has to be the Executive.

That's 1833, pretty knowledgeable about the founders' intent.

Alyza D. Lewin: --But that is a rather extreme position, number one, to suggest that the Executive Branch would have not only the authority to recognize a foreign government, but also at the State Department's say-so, that automatically would end the question or any review by any other branch.

The -- the State Department merely says that the power's influence upon--

Sonia Sotomayor: But what -- there is always review with the power of the purse, and there's always review with not appointing an ambassador.

There -- there is review in a variety of alternative ways by Congress.

It just may not be the way you prefer, that they could pass a resolution contradicting that that would have any legal course.

Alyza D. Lewin: --There -- well, there is review, and even -- both to respond to Justice Sotomayor and Justice Breyer, Justice Story and William Rawle both recognize that authority of Congress to review.

Justice Story also said that,

"If such recognition is made, it's conclusive upon the nation unless, indeed, it can be reversed by an act of Congress repudiating it. "

And then he went further to say that,

"If the President refuses to recognize, then he said Congress may, notwithstanding, solemnly acknowledge the sovereignty of the nation or party. "

John G. Roberts, Jr.: I suppose -- I suppose you could also say Hamilton in 1787 or whatever it was trumped Storey in 1830, right?

I mean, he said pretty much the exact opposite, that the recognition provision was really just a trivial formality.

Alyza D. Lewin: Hamilton also switched his position before he was in the administration and after he was in the administration.

What that would seem to show, Mr. Chief Justice, is that it's not clear the history--

Sonia Sotomayor: Ms. Lewin--

Antonin Scalia: In any case, this is not your main point, is it?

You're -- you're being either forced into or willingly yield yourself to arguing that -- against the proposition that if this is recognition, it is invalid.

But your main position is this is not recognition; it just has an effect on on the State Department's desire to -- to make nice with the Palestinians, and your position is Congress has no -- no compulsion to -- to follow that, assuming it can't recognize.

Alyza D. Lewin: --That is correct.

Antonin Scalia: You don't claim that this is recognition.

Alyza D. Lewin: We do not claim that this is recognition.

In fact, if there was a conflict 20--

Sonia Sotomayor: --Ms. Lewin, one factual matter I'd like.

I see in the record that your application for the passport asked for “ Jerusalem, Israel ”, but that was changed.

Was it changed in litigation?

Was there an actual official request to change it in your application?

Alyza D. Lewin: --The initial request was made purely because of a misunderstanding of what the law initially required.

And it was a common--

Sonia Sotomayor: Answer my question.

Did you apply formally to have it changed or did you just take this -- that position in litigation?

Alyza D. Lewin: --The position was then subsequently taken in litigation.

But in subsequent renewals of the passport, too, it has been just the request that “ Israel ” be put on the passport, and it has come back with “ Jerusalem ”.

Samuel A. Alito, Jr.: May I ask you another -- another factual question?

When Menachem was born, was he issued a birth certificate by the Israeli authorities?

Alyza D. Lewin: Yes.

Samuel A. Alito, Jr.: And the United States recognizes that as -- as a lawful exercise of Israeli authority, to issue a birth certificate for a child born in Jerusalem?

Alyza D. Lewin: I believe they do, Your Honor.

Samuel A. Alito, Jr.: So what -- this is a question I would ask the Solicitor General, but I don't completely understand what the position of the United States is regarding Israeli sovereignty over Jerusalem.

I understand it is the position of the United States that Israel does not exercise full sovereignty over Jerusalem, but in that -- in this instance, the issuance of a birth certificate, and others I can think of, I suspect the United States recognizes that Israel is lawfully exercising attributes of sovereignty over the territory of Jerusalem.

Is that correct?

So if someone -- let's say an American citizen committed a crime in Jerusalem, would the United States take the position that the Israeli government has no lawful authority to prosecute that person for the crime?

Alyza D. Lewin: I do not believe so, Your Honor.

I believe that they would feel that the Israeli government has the authority to prosecute that crime.

Elena Kagan: Ms. Lewin, if I can ask you, if your primary position is that this is not a recognition statute, can we talk a little bit about what it is?

I mean, why -- what -- what is the design, what is the effect of this statute other than as something that goes to recognition?

Alyza D. Lewin: This statute is a statute that was created to give individuals the right to self-identify as they choose that they were born in Israel.

Elena Kagan: But the United States Government does not usually give people that right to self-identify in this way.

In other words, I think this was the Chief Justice's question in the first argument, if you're an American citizen born in Northern Ireland, you can't get the right to say Ireland.

For that matter, if you are an American citizen born in Jerusalem today, you can't get the rights to say Palestine.

This is a very selective vanity plate law, if we might call it that.

And -- and it's selective because Congress had, it appears to me, and it's consistent with the rest of the statute, as Justice Ginsburg said, a real view that this was the self-identification it wanted.

In other words, the ability of American citizens to say yes, I was born in Jerusalem, and that means I was born in Israel.

That and only that self-identification is allowed.

Alyza D. Lewin: This statute was rectifying a misguided policy of the State Department which enabled individuals born in Israel proper, whether in Tel Aviv or in Haifa, who were opposed politically to the State of Israel to remove that sovereign, to remove reference to Israel from their passport, but it did not allow the flip.

It did not allow those who are born in Jerusalem and who live under the sovereign government of Israel, who wish to put Israel on their passport, to put Israel on their passport.

Ruth Bader Ginsburg: What about Palestinians who were born in Jerusalem and want to have Palestine as their place of birth?

That -- that existed until 1948, that option.

Alyza D. Lewin: Correct, Justice Ginsburg, because at that point there was, before 1948, a Palestine.

So the -- the law was not going so far--

Elena Kagan: Now, people can -- Palestinians cannot -- American-born Palestinians cannot do that.

And that suggests that Congress had a view, and the view was that Jerusalem was properly part of Israel.

Alyza D. Lewin: --And that is because this statute was dealing with an existing sovereign that you either remove from the passport or put on the passport.

They weren't complicating the situation by putting in nonrecognized sovereigns or other entities.

They said you either put it on or you take it off.

We'll give you the choice--

Samuel A. Alito, Jr.: If an American citizen is born in Barcelona, Spain, is that citizen allowed, by the State Department, to put Barcelona as place of birth?

Alyza D. Lewin: --If they wish to remove the country of birth and list the smaller entity?

Yes.

Samuel A. Alito, Jr.: And is that a -- is that a vanity plate for people who believe in Catalan independence?

Alyza D. Lewin: It is enabling an individual to exercise their choice to self-identify as they choose, yes.

Anthony M. Kennedy: But, again, your argument -- and you're consistent on this, your first argument is that this is not recognition.

Now, suppose the State Department, and I think this is its position, says this is recognition.

If we defer to the State Department's judgment, to the government's executive judgment on that point, and the government said this is recognition, and you say it isn't recognition, why doesn't the government trump?

If the government -- if the Congress really wants to test its power, it can pass a law saying you must recognize Israel as being the legitimate government of Palestine, but it has not done that.

And since it has not done that, it seems to me the government's argument trumps.

Alyza D. Lewin: Justice Kennedy, you are correct.

The way the balance of powers works is that the Executive Branch has the right to recognize a sovereign.

However, if Congress deliberates, passes legislation, and that legislation is signed into law, then Congress's position trumps.

Anthony M. Kennedy: But you -- but you say that this isn't recognition.

So the ultimate conflict is not before us and -- and, therefore, the government's policy, which says that this is recognition, should be given deference and it trumps.

Alyza D. Lewin: Well, Your Honor, if it does not amount to recognition, then Congress had the authority to pass this legislation pursuant to its passport authority.

Antonin Scalia: I -- I guess there are competing canons here.

I mean, one is, I suppose, that we listen to the State Department on matters of foreign affairs, but I suppose another one is that we do not hold a -- an act of Congress to be unconstitutional and thereby ineffective.

So that seems to me a draw, doesn't it?

Alyza D. Lewin: Yes, Justice Scalia.

Antonin Scalia: So the State Department says this amounts to recognition, and Congress says whether it does or not, we want -- we want this person to be able to list Israel.

Alyza D. Lewin: That is correct.

And since this was signed into law by the President, the law right now trumps whatever the Executive Branch may say.

Elena Kagan: Can I -- can I give you a hypothetical, Ms. Lewin?

Suppose that Congress passed a law and this law said that the Secretary of State had to send an official letter to all foreign ministers whenever a U.S. citizen was born in Jerusalem, and that official letter from the Secretary of State said says just -- it announces that a new American has been born in Israel.

Would that be constitutional?

Alyza D. Lewin: Excuse me, this would be a law passed?

Elena Kagan: This is a law passed by Congress and it says every time a U.S. citizen is born in Jerusalem, the Secretary of State has to send an official letter to every other foreign minister saying that a new American has been born in Israel.

Alyza D. Lewin: Yes, that would be constitutional.

Elena Kagan: That would be constitutional, even though the -- the Congress is basically telling the Secretary of State to engage in a certain kind of diplomatic communication with other foreign countries.

Alyza D. Lewin: The description of the law that you provide seems to be very similar to what a passport does.

A passport recognizes an individual as an American citizen for purposes of communicating that information to the foreign government.

Elena Kagan: Yes, exactly right.

That was going to be my point, that it was--

[Laughter]

--that it was extremely similar to what a passport does, that both are forms of diplomatic communication, and that what we usually say about diplomatic communication is that whatever Congress's other foreign affairs powers are, the power of diplomatic communication belongs to the President and the President alone; that in that realm we only speak with one voice.

And so I guess I have to sort of say that that answer that you gave me, that this could -- that Congress could say to the Secretary of State, here's the diplomatic communication that you have to send to other foreign ministers, seems, well, a little bit shocking.

Alyza D. Lewin: But recognizing an individual as an American citizen facilitates the transfer and the movement of American citizens across borders.

This -- this passport, if it were to list Israel pursuant to this law, would be indistinguishable from all the other passports of individuals born in Tel Aviv or Haifa or anywhere else in Israel.

That passport would not, when shown, be making any kind of political statement.

It would merely be identifying the individual by their name, date of birth, place of birth, as all American passports of individuals identify them.

John G. Roberts, Jr.: So you would say in Justice Kagan's hypothetical, maybe the letter that's required to be sent to every foreign head of state would be unconstitutional, but that doesn't mean that the passport is, because the passport is used primarily for purposes of identification, and it's only the letter that makes it something else.

Alyza D. Lewin: Correct, Justice Roberts.

Elena Kagan: Well, if you say that--

John G. Roberts, Jr.: Justice Kennedy.

Anthony M. Kennedy: Do you want us to say in our opinion that this is not a political declaration?

Alyza D. Lewin: This is not a political declaration, that's correct, Justice Kennedy.

Anthony M. Kennedy: Well, then, I'm not sure why that Congress passed it, then.

Alyza D. Lewin: Congress passed it to give these individuals the right to self-identify as they choose, because individuals in general have that ability on their passport to choose and designate--

Sonia Sotomayor: I thought it was a Federal crime to say that you were born in the United States when you weren't on an official document.

So why -- why is it that it's okay for Congress to say something that hasn't happened, meaning to say that someone born in Jerusalem is actually born in Israel?

It's different than somebody who's born in -- in Taiwan saying I was born in America.

Alyza D. Lewin: --Since 19--

Sonia Sotomayor: I mean, they can self-identify all they want, but can they do that?

Alyza D. Lewin: --Yes.

Since 1948, Israel has acted as the sovereign over western Jerusalem where our client was born, and since 1967 over the entire area of Jerusalem.

So -- so--

Sonia Sotomayor: I know what it's done, but has the U.S. recognized -- has any President since 1948 recognized Israel's sovereignty over that area?

Alyza D. Lewin: --In a formal sense, no.

But allowing individuals to recognize that, that would not be a false statement.

Elena Kagan: --Ms. Lewin, may I just I know your time is -- but if I might just go back to the thought that the Chief Justice gave you that you agreed with.

Here's the way a passport begins.

It begins,

"The Secretary of State of the United States of America hereby requests all who it may concern to permit the citizen. "

blah, blah, blah.

That's what that's the -- you know, the Secretary of State requests all of these who are going to be looking at this passport.

And then in Haig v. Agee, we described a passport as a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer.

So this is, this passport, it seems, both on what it says itself and on what we've said about it, it's like a letter from the Secretary of State.

It's a communication.

Alyza D. Lewin: It is a communication merely to facilitate this transfer of individuals as American citizens, not to make public statements about where they were born or where they're from or what countries the United States recognizes.

If I may reserve the rest of my time.

John G. Roberts, Jr.: Thank you, counsel.

General Verrilli.

Donald B. Verrilli, Jr.: Mr. Chief Justice, and may it please the Court:

Let me get to the heart of the problem with Section 214(d).

Even if Section 214(d) does not officially change or formally change the recognition position of the United States, it tries to deny the President the power to give effect to our official recognition position by forcing Executive Branch officials to issue official diplomatic communications that contradict that position.

John G. Roberts, Jr.: What -- what if there were a law that said precisely pretty much what you just said?

The law says, okay, Mr. President, you can recognize whoever you want, but if you recognize this -- this country, this government, we're going to treat it as if you hadn't recognized this government.

For all purposes of domestic law, we're going to pretend -- we're going to operate on the assumption that you have recognized this country.

Donald B. Verrilli, Jr.: I think there would be limits to Congress's ability to do that.

We think that the recognition power that the President possesses necessarily includes the power to give effect to recognition decisions.

John G. Roberts, Jr.: So -- so that law would be unconstitutional?

Donald B. Verrilli, Jr.: To the extent it said for all purposes, yes, because--

John G. Roberts, Jr.: Well, isn't that exactly what the Taiwan Relations Act says?

What it says is,

"The absence of diplomatic recognition shall not affect the application of the laws of the United States with respect to Taiwan. "

Donald B. Verrilli, Jr.: --No, Mr. Chief Justice, that's quite different.

The Taiwan Relations Act was an act that was an exercise of the necessary and proper power to implement the President's foreign relations judgment about how Taiwan should be treated.

John G. Roberts, Jr.: Well, let's say the President -- let's say the President did not want to recognize Taiwan and Congress passes a law that says for every purpose under American law, we will treat Taiwan as if it had been recognized?

Donald B. Verrilli, Jr.: That might raise a serious Constitution question, but that isn't the situation that was -- it wasn't the case when it was enacted, it's not the case now, and it's -- and it's different from the current situation.

The fundamental problem with Section 214(d) is that it purports to try to force the Executive Branch to issue official diplomatic communications that contradict the position of the United States.

Samuel A. Alito, Jr.: But is that really true?

Suppose -- could Congress pass a law saying that every passport -- every passport issued to an American citizen must list the place of birth, including country, and that for this purpose, the country is the nation that issued the birth certificate to that individual?

Could -- could Congress do that?

Donald B. Verrilli, Jr.: I -- I think that that -- that in a situation like that, the Court ought to defer to the Executive Branch's judgment that the place of birth listing can have significant diplomatic consequences.

We have had policies in place for decades in this country that align place of birth designations with our official recognition policy.

The reason we do that is because foreign sovereigns look to these communications as indicative of where we stand on what--

Antonin Scalia: If it -- if it is within Congress's -- if it is within Congress's power, what difference does it make whether it antagonizes foreign countries?

Donald B. Verrilli, Jr.: --Well, there are certain things that are within Congress's power that would antagonize foreign countries that wouldn't raise a separation of powers problem, of course, like a trade embargo or a travel ban.

But--

Antonin Scalia: And this may be one of them.

So--

Donald B. Verrilli, Jr.: --This is not one of them.

Antonin Scalia: --the mere fact that it upsets foreign relations doesn't prove a thing.

Donald B. Verrilli, Jr.: No.

The critical point, Your Honor, is that what this statute does that those other statutes don't do is it requires the Executive Branch, the President himself and the Executive Branch itself, to communicate a message that contradicts the official recognition position of the United States, undermining the President's credibility and preventing the President from being able to speak with one voice credibly.

Anthony M. Kennedy: But why couldn't you have a disclaimer of the kind that I've explained to the Petitioners' counsel.

She said that would be perfectly lawful, for you to say it's not the position of the State Department, this is not an indication that Israel is -- has jurisdiction over Jerusalem.

Donald B. Verrilli, Jr.: Your Honor--

Anthony M. Kennedy: Why wouldn't that solve the problem?

Donald B. Verrilli, Jr.: --It doesn't solve the problem because the issuance of the disclaimer is a credibility hit.

It undermines the credibility of the President because what is -- think about what it's actually saying.

What it's actually saying in this context is yes, we're issuing thousands of passports that identify persons born in Jerusalem as being born in Israel; yes, the Congress of the United States required that; but pay no attention to it really; it doesn't have any bearing on recognition.

John G. Roberts, Jr.: If it had -- if it were such a big deal, why did the Chief Executive at the time sign it?

Donald B. Verrilli, Jr.: Well, the Chief Executive issued a signing statement which really was, in effect, a disclaimer, in 2002.

President Bush's statement said in 2002, this does not change our official recognition policy and we're going to treat it as advisory, and that did not have the effect of--

John G. Roberts, Jr.: So we should give no weight to the fact that the Chief Executive signed the law that he is now saying has such a dramatic that his successor, but I gather the position is the same -- is now saying has such deleterious effects on American foreign policy?

Well, as a general matter, does that have any consequence at all?

Donald B. Verrilli, Jr.: --No.

I mean, I think this Court -- held think this Court held in Myers that the fact that one President signed a law into -- signed a law that violated separation of powers doesn't have any effect.

John G. Roberts, Jr.: Oh, no.

I know, I'm not suggesting it does, although that's a separate question.

But it does go to the credibility of the assertion that this is going to have such dramatic effects on American foreign policy.

Donald B. Verrilli, Jr.: I don't think that I think the credibility of the assertion is proven by history.

With all due respect, Mr. Chief Justice, even though President Bush issued that statement which said this didn't change the policy of the United States and that we weren't going to enforce it because he was treating it as advisory, the consequences that ensued in the Middle East in October of 2002 were that there were mass demonstrations in Jerusalem, thousands of people in the streets, some turning violent.

The Palestinian parliament met and voted for the first time to declare Jerusalem the capital of the Palestinian state, No longer forbearing on that issue.

And if you look at pages--

John G. Roberts, Jr.: But that's partly because the Executive Branch made such a big deal out of it.

I mean, they issue a statement saying, this is unconstitutional and all that.

They could easily have said, this is no big deal, they're just letting whoever is born there pick the name they want to put on--

Donald B. Verrilli, Jr.: --With all due respect, Your Honor--

John G. Roberts, Jr.: --nothing to see here, move on, and we're proving that by going ahead and signing it.

And over the -- over the intervening course, the executive has litigated this.

It's a self-fulfilling prophecy that it's going to be such a huge deal.

Donald B. Verrilli, Jr.: --No, Mr. Chief Justice, with all due respect, I think on this question that you're asking me, this is a place where the Court should accord deference to the judgments of the Executive Branch and the State Department, in particular.

If the State Department had thought, if the executive had thought that it could solve the diplomatic problem by minimizing the effect of this provision, pretending as though it wasn't going to have this effect, certainly they would have followed that course.

Antonin Scalia: Not necessarily.

Sonia Sotomayor: What they're asking you to do is to look -- they're asking the government to lie.

Donald B. Verrilli, Jr.: I think that--

Sonia Sotomayor: I'm not that's exactly what you're saying the government should the executive department should not do.

Donald B. Verrilli, Jr.: --I do think the problem here is that the executive made a considered judgment in 2002 that this couldn't sensibly be handled that way.

That's--

Stephen G. Breyer: So how are we--

John G. Roberts, Jr.: What if it just says “ Disputed ”, parentheses after it, “ Disputed ”?

Then I gather they wouldn't be lying.

They would be telling the truth.

Donald B. Verrilli, Jr.: --Well, I don't know.

I mean, a couple things about that.

First, Your Honor, that would have the effect of identifying the passports that were issued to people born in Jerusalem on the -- because that would be the reason to put it on.

But beyond that, it isn't disputed as a matter of the official position of the United States.

The position of the United States 24--

John G. Roberts, Jr.: Well, it's disputed as a matter of the government of the United States.

Part of the government says this -- well, actually, no, I mean, Congress is not saying under my hypothetical, this is Israel.

It's saying there's a dispute about it, which I would think is about as true a statement as you can make.

Donald B. Verrilli, Jr.: --Well, there's a dispute certainly among the parties of the region, but I think the whole premise of Petitioner's argument here is that within the government of the United States there isn't a dispute over the recognition issue.

Stephen G. Breyer: --Can you help me with this same question?

How should we approach it generally?

That is to say, I can think of instances where a similar statute is serving nothing other than administrative matters -- the passport should be red or something -- and I can think of instances where it causes a lot of trouble.

But I can think of instances like this one, and I could and you could easily replicate this controversy with Israel in our imaginations, similar controversy with Donetsk and the Ukraine, where we make some agreement with Russia and something similar comes up, or with Iran, and pretend that -- remember that Russia once invaded the northern part of Iran.

And all over the world there can be similar kinds of problems where it's debatable what the words of the passport actually mean or how they will be taken by others and what others will think they mean.

Now, how do we, who know little about it, determine, when it gets into the realm, that we should stay out of it and let the President and the Constitution gives him that power or should some think we should always intervene, perhaps some never.

What in your mind is the right standard?

How do we decide?

Donald B. Verrilli, Jr.: I do think this Court, the last time the case was here, said that ultimately it was up to the Court to judge the constitutionality of the statute.

Of course, we accept that.

But in doing so, we believe it is quite important that the Executive Branch get deference on judgments of precisely the kind that Your Honor has identified.

This statute is a very rare passport statute.

There really isn't any other passport statute like this one that purports to interject an issue of recognition policy into the content of passports.

Antonin Scalia: General Verrilli, if we agree with the Petitioner, we do not have to confront the constitutional question whether the President has exclusive power over recognition.

If we agree with you, we are going to have to grapple with that constitutional question, right?

So maybe you want to talk about it.

Donald B. Verrilli, Jr.: Well, let me I'm delighted to talk about it, but before I do, let me actually address that.

I don't think you necessarily have to address the question of exclusive power to rule for us, and here's why: I think that, given the petitioner's position that 214(d) does not change recognition, the official recognition position of the United States, and the Senate amicus brief saying it doesn't change official recognition position of the United States, then that's a given, that the official recognition position of the United States is that we are not recognizing any nation's sovereignty over Jerusalem at this point until the parties work it out.

With that as a given, the separation of powers problem with Section 214(d) is that it forces the Executive Branch to engage in diplomatic communications that contradict our official recognition position and undermine the President's credibility, and that--

Antonin Scalia: But if it does, then their argument is going to be it does amount to a -- if it does contradict it, then Congress is making its own judgment about recognition.

You have to confront that.

Are they entitled to do that?

I don't see how you can avoid that question.

Donald B. Verrilli, Jr.: --Well, I'm happy to address it.

I will address it now, but I do think that you can decide the question on the ground I just decided without ultimately resolving that question.

Anthony M. Kennedy: Couldn't you say that, at a minimum, the Petitioner has conceded that it is not clear that this is recognition?

Donald B. Verrilli, Jr.: Yes, that's certainly the case and, therefore, we take as a given that the President's position on recognition, which is the same as the position every President going back to Truman, is the official position of the United States and the executive is being forced to issue diplomatic communications that contradict it.

Ruth Bader Ginsburg: General Verrilli, it is -- the requirement of place of birth on the passport, that doesn't come from the Congress.

That comes from the executive, right?

Donald B. Verrilli, Jr.: That's correct.

There's a longstanding policy there.

Ruth Bader Ginsburg: And I thought that the purpose of birthplace identified by the government, by the executive, is to identify the person and not it's not something that the President or the executive required out of a foreign policy concern.

The purpose of it was to identify the individual; isn't that right?

Donald B. Verrilli, Jr.: Yes, that is its primary purpose.

But even though that's its primary function within the passport, it has the effect of raising diplomatic foreign policy issues about our recognition position, and that is why we have had in place official policies in the Foreign Affairs Manual going back to the early 1960s that align decisions of place of birth with our recognition policy.

And in fact, before they were formalized in the manual, they stretch all the way back to World War II.

It's just inevitable that foreign sovereigns are going to react to that, that the way in which we -- the information that we put in that--

Sonia Sotomayor: This is a pretty rough way to identify someone.

I mean, there are hundreds of John Smith's in the United States.

Donald B. Verrilli, Jr.: --That's true, Justice Sotomayor, but, you know -- and this question about whether place of birth designations are necessary on passports is actually one that Congress asked the Comptroller General to study back several decades ago and there were a series of studies made, and the conclusion of those studies, which you can find in the current version of the Foreign Affairs Manual, not the one in the joint appendix, but the one on the State Department's web site, is that you really have to have them for two reasons.

And the first is that very often foreign nations require place of birth information to let you travel to that nation, so it's going to be highly inconvenient if it's not in the passport.

And second, law enforcement and counterterrorism officials were quite concerned that passports were going to become less effective in their efforts if you removed the place of birth designation.

Samuel A. Alito, Jr.: Can I ask you the question I asked Ms. Lewin.

What exactly is the position of the executive regarding Israel's exercise of sovereign powers in Jerusalem?

Is it the case that it is the position of the executive that Israel cannot lawfully exercise any sovereign powers within Jerusalem?

Donald B. Verrilli, Jr.: The position of the executive is that we recognize, as a practical matter, the authority of Israel over West Jerusalem.

With respect to the rest of Jerusalem, the issue is far more complicated.

It might well be, as a practical matter, although I confess I don't specifically know the answer to the question you asked Ms. Lewin about the status of the birth certificate issued there, it might well be that, as a practical matter, we would accept it as evidence of birth.

Of course we would also issue--

Samuel A. Alito, Jr.: Well, it must have been accepted as evidence of birth or the passport would never have been issued.

Donald B. Verrilli, Jr.: --Well, we do have the consular notification of birth.

Samuel A. Alito, Jr.: I thought you had to provide a birth certificate--

Donald B. Verrilli, Jr.: Right.

Samuel A. Alito, Jr.: --in order to get that.

Donald B. Verrilli, Jr.: Well, that's right.

But as a practical matter, I don't think one can infer anything about our recognition policy from that.

We're recognizing practical reality.

I do think, for example, Your Honor, if we were to start issuing passports to people born in the Crimea tomorrow that identified Russia as the country of birth, that would carry obvious implications for our foreign policy position, and it would contradict the foreign policy position in a way that could be quite deleterious.

John G. Roberts, Jr.: Let's say there's a -- that passports are printed in Country A, not the United States, and there's a printing plant there, and Congress passes a law saying, no, you must have the passports printed in Country B because we don't think you should recognize Country A.

Does that interfere with the President's recognition power?

Donald B. Verrilli, Jr.: Well, I'm trying try to give you a precise answer to that.

If the statute said they may not -- passports may not be printed in Country A because the United States does not recognize Country A, that would be--

John G. Roberts, Jr.: Because Congress wished the President would not recognize Country A.

So in response to that, we're directing that passports that are now printed in Country A be printed in Country B.

Donald B. Verrilli, Jr.: --That would be a harder case than this one, I think, because it doesn't as clearly implicate the President's ability to give effect to recognition power.

And one reason it doesn't is because that doesn't affect the content of the diplomatic communication in the way that Section 214(d) does.

John G. Roberts, Jr.: I thought your position was that the President has the exclusive right to decide what interferes with his recognition power.

Donald B. Verrilli, Jr.: No, I think that the President has the right to give effect to his recognition power, and Congress cannot try to command the Executive Branch to act in a manner itself that contradicts the President's recognition decision because that prevents the President from giving effect to that decision.

And we do think, to go back to Your Honor's question, that it is an exclusive power with the President.

It is -- after all, recognition is not lawmaking.

It is an executive function.

And one would, therefore, expect that it'd be assigned to the Executive by the Constitution and not to the Congress.

And when--

Antonin Scalia: War making is an executive function, too.

Donald B. Verrilli, Jr.: --But with respect to -- with respect to the executive functions around recognition, when Congress wanted the -- excuse me, when the framers wanted the Congress to play a role and the Constitution envisions a role for the framers in those executive functions, it's prescribed.

Article II gives the Senate a role in confirming ambassadors, it gives the Senate a role in advice and consent for treaties.

And there isn't anything in Article II as a structural matter that gives the Congress -- the Senate or the Congress a comparable role with respect to recognition decisions.

Samuel A. Alito, Jr.: If I think that that Congress generally -- that Congress has the authority under the Constitution to require identification information in passports and to specify the identification information that's included, if I -- if I believe that, then the effect of your argument, I guess, is that something that Congress can do is unconstitutional if it affects the recognition power -- the President's recognition authority in -- in some way.

Is that the -- is that--

Donald B. Verrilli, Jr.: No, our position is narrower.

I think all you need to decide to decide this case in the government's favor here is that what Congress can't do is use the authority it has to regulate passports, and we acknowledge, as we did in our brief, that Congress has authority to regulate passports.

It can't use that authority to command the Executive Branch to issue diplomatic communication that contradicts the government's official position on recognition.

And that we would say--

Anthony M. Kennedy: I don't -- I don't like to, you know, just keep going back to the same thing.

It seems to me that you could draft a statement that actually furthers your position.

This passport does not indicate that the government of the United States and the Secretary of State recognize that Israel has sovereign jurisdiction over Israel, and you'd actually be making your case.

Donald B. Verrilli, Jr.: --I appreciate the appeal of that idea, Justice Kennedy, but the problem with it is that the need to make that statement doesn't further the diplomatic interest of the United States--

Ruth Bader Ginsburg: Ms. Lewin answered, I think quite candidly--

Anthony M. Kennedy: But it doesn't further -- why doesn't it further it?

Donald B. Verrilli, Jr.: --Because the very need to make the statement calls the credibility of the President's representation of our recognition position into question.

And the reason--

John G. Roberts, Jr.: But just like the signing statement.

Donald B. Verrilli, Jr.: --Excuse me, Mr. Chief Justice.

John G. Roberts, Jr.: Just like the signing statement, which said precisely what Justice Kennedy suggested, that the Executive could do at this point.

Donald B. Verrilli, Jr.: Right.

And it did not have and I -- but I think that's the point.

The assigning statement was in the nature of a disclaimer and it did not prevent the damage to the credibility of the United States.

Ruth Bader Ginsburg: --General Verrilli, I think the answer to the question that Ms. Lewin gave was that she said yes, the Executive could put that on the passport.

But she also said Congress could then pass a law saying, this is antithetical to our view, and that doesn't have to be put on the passport.

On the passport is just birthplace, Israel, period.

Congress could pass that into law and counter whatever the President does.

Donald B. Verrilli, Jr.: And I do think that's the necessary implication of the Petitioner's argument here, not only that Congress could forbid a disclaimer, but Congress could require that the--

Anthony M. Kennedy: But that law isn't in front of us.

Donald B. Verrilli, Jr.: --But -- but were the -- were the Court to uphold the constitutionality of the law that is in front of you, it seems to me the necessary implication of that would be that Congress could prevent a disclaimer, it could require not just that Israel be listed but Jerusalem, Israel be listed on -- on a country of birth, and it seems to me that those are very serious interferences with the President's--

Sonia Sotomayor: General, if I'm understanding your narrow holding, just so that we can underscore it, what you're saying is that Congress can't compel speech by the President with respect to foreign relations.

Donald B. Verrilli, Jr.: --I would put it a little more narrowly, Your Honor, that Congress cannot compel the Executive to issue diplomatic communications that contradict the official position of the United States on a matter of recognition.

I think that's all that's the question before the Court in this case.

Antonin Scalia: Well, you see, I -- I pick up this passport, and it says place of birth, Israel.

Do I know whether this person was born in Jerusalem or in -- in Haifa?

Donald B. Verrilli, Jr.: No, you don't.

But the--

Antonin Scalia: So how does it -- how does it advertise to the world that -- that the President is contradicting himself?

All you know is that the person was born in Israel.

It could have been anywhere in Israel.

Donald B. Verrilli, Jr.: --The world knows that we will issue thousands of passports to people born in Jerusalem identifying them as born in Israel, and the world knows that we will be doing that because the Congress of the United States required it.

And those actions under--

Antonin Scalia: But it is not a communication contained in the passport itself, is it?

You're just saying that -- that this -- this piece of legislation advertises to the world what the situation will be, but -- but you're not compelling the President to -- to say that this individual was born in Jerusalem and we're going to say he was born in Israel, because you can't tell that from the passport.

Donald B. Verrilli, Jr.: --You're requiring the President to make statements thousands of times that contradict the official recognition position of the United States.

Now, it is true that -- that a border guard in a -- in a country where a person is traveling won't know whether this particular passport is one of them, I suppose, unless they ask for place of birth information -- city of birth information.

But unless they ask that, they won't know with the particular passport.

But what everyone will know, what foreign sovereigns will know, what the parties in this region will know is that thousands of times the Executive Branch is issuing passports that contradict our official recognition position with respect to persons born in Jerusalem.

Sonia Sotomayor: General, in general, when I travel abroad and come back to the United States or when I go to a foreign country and they're stamping my passport, do they have forms that require you to identify the city?

Donald B. Verrilli, Jr.: I'm not aware that they do, Your Honor.

I don't know the answer to that.

I'm not aware that they do.

Antonin Scalia: I know that some of them do.

Donald B. Verrilli, Jr.: Well, they may well, Your Honor.

But I do -- but I do think the essential problem here with -- with what 214 does is that it tells the Executive to communicate a message that the Executive believes contradicts our position and undermines the President's credibility as our sole spokesman in matters of diplomacy.

And there is not an issue on which the President's credibility could be more important than the question of the status of Jerusalem.

The question of the status of Jerusalem is the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.

It goes all the way back to President Truman.

And the fact of the matter is that the parties in the region, the nations in the region, and frankly people around the world and governments around the world scrutinize every word that comes out of the United States Government and every action that the United States Government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution.

And there is no doubt that Section 214(d), when it was enacted, had a serious adverse effect calling our credibility into question.

You can just look at the statements from foreign parties that are in the Joint Appendix and the State Department communique at pages 231 to 233.

You can look at contemporaneous press accounts from that time, and it seems to me without -- of course, if we were required to implement this, we would do everything we could to try to mitigate the problem.

But it seems to me that the right -- it is quite important for this Court to understand that there is a very serious risk that that harm to our credibility as an honest broker on this very serious vexing issue could be called into serious question--

Samuel A. Alito, Jr.: --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?

Donald B. Verrilli, Jr.: --I've got -- I've got at least two points to make about that if I could.

First, it's not a misperception.

It's an accurate perception.

One looks at 214 as a whole, not just 214(d).

What 214(d) -- what 214 does is try to force the Executive Branch to take a series of steps that no nation would take if it did not recognize the sovereignty of Israel over Jerusalem, and that nations would only take if they did recognize the sovereignty--

Samuel A. Alito, Jr.: But Congress did that, so nothing that we do is going to change that or change what Congress thought.

Donald B. Verrilli, Jr.: --I think that's, with all due respect, too easy an assumption, Your Honor.

The difference between when this statute was enacted and it did give rise to very serious problems that we had to work very hard to try to get under control.

The difference between then and now, there's two very important differences, and they lead to a very important conclusion.

The first important difference is it won't be one branch of the United States Government saying that this should happen.

It will be two branches of the United States Government saying it should happen.

It won't be that we will -- that this statute will have been enacted, but it won't be enforced.

It will be enforced.

And the consequence of those two things together is that the credibility of the executive the credibility of the President on this fundamental question of where the United States stands on the status of Jerusalem until the parties work it out will inevitably and seriously be called into question and into doubt.

Foreign governments, foreign peoples will not be able to have complete confidence that the position that the President announces on behalf of the United States is, in fact, the position of the United States.

That is exactly why Section 214 violates the separation of powers, even if you conclude that Congress might have some residual power, which we obviously strongly disagree with.

The official position of the United States is that Jerusalem, we don't recognize any nation's sovereignty over Jerusalem until the parties have worked that issue out on their own.

And what this -- what this statute does if it was enforced will undermine the credibility of our -- of the President's ability to maintain that critically important diplomatic position as we move forward.

Thank you.

John G. Roberts, Jr.: Thank you, General.

Ms. Lewin, you have four minutes remaining.

Alyza D. Lewin: Thank you, Your Honor.

Just a couple of points.

Justice Sotomayor, this is not requesting that the government lie on a passport.

As the Solicitor General said, this is just recognizing a practical reality that Israel is--

Sonia Sotomayor: No, it's not.

It's the place of birth.

If you say Israel, you believe that -- you're saying that you believe that person was born in Israel.

Alyza D. Lewin: --Yes.

Well, seven years prior to the passage of this legislation, Congress passed the Jerusalem Embassy Act, and in the Senate brief it's actually referred -- amicus brief, it's referred to in Footnote 10, which had required that the embassy be moved to Jerusalem and provided the President with a waiver--

Sonia Sotomayor: And there was a waiver -- and there was a waiver provided and every President has exercised the waiver.

Alyza D. Lewin: --So this would be, though, recognizing, as was said before, that there is a disagreement, but not--

Sonia Sotomayor: How could you tell me it's not a lie?

You, the United States, are being asked to put on the passport that you believe the place of birth of this individual is Israel, and the government -- and the executive has said, no, we don't think it was Israel, we think it was Jerusalem.

Alyza D. Lewin: --But the speech is the speech of the individual who has self-identified.

Sonia Sotomayor: But the individual is not the one issuing the passport.

It's the government.

The document says.

This is a diplomatic exchange between sovereigns.

Alyza D. Lewin: But we are permitting that speech when it comes to West Bank, Gaza Strip, a host of others.

We're recognizing and allowing that speech.

Elena Kagan: I take it, Ms. Lewin, when you say the West Bank, I take it you think that Congress could pass the identical statute with respect to a child born in Hebron, say.

Alyza D. Lewin: Saying that--

Elena Kagan: That that, too, is Israel?

Alyza D. Lewin: --Correct.

Elena Kagan: Yes.

Okay.

Alyza D. Lewin: We are providing two alternative arguments, Justice Kagan: One saying that this is does not amount to recognition; or if the Court decides to reach the separation of powers question and views this as somehow implicating the recognition clause, that at this point the law passed by Congress would trump the President.

Allowing the State Department's say-so to control because it's an expert in foreign relations would be abdicating an independent function and would turn the President into an autocrat whose word controls.

We suggest that this is analogous, the recognition power, is analogous to the President's authority to enter into executive agreements to resolve foreign claims, and that just as though that is not an explicit authorization provided to the President, it's also not exclusive, and the agreements entered into by the President cannot contradict or run counter to the express will of Congress.

With regard to the international response to this, the consequences, first of all, described by the Solicitor General are grossly exaggerated.

And what the world knows could be the -- first of all, the United States State Department could make clear in their statements, as they did with Taiwan, that this does not change the United States' policy with regard to the sovereignty over Jerusalem.

And because the passports would be indistinguishable from those who are born elsewhere, there's no continuing statement.

While this may initially have some impact, over time, and I propose a short time, particularly if the United States makes that statement, this will become a nonissue because there's no continuing--

Elena Kagan: Can I say that this seems a particularly unfortunate week to be making this kind of,

"oh, it's no big deal. "

argument.

I mean, history suggests that everything is a big deal with respect to the status of Jerusalem.

And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there.

And so sort of everything matters, doesn't it?

Alyza D. Lewin: --Well, the -- it is a sensitive issue, but to suggest that what will go on a passport as a place of birth is going to implicate or make it worse, there's no evidence of that.

Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.