Constitutional Opinions

…And a Young Child Will Lead

By From the June 2012 issue

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The wolf will live with the sheep and the leopard will lie down with the kid; and a calf, a lion whelp and a fatling [will walk] together, and a young child will lead them.

All rise. It would no doubt be set down as apocalyptic were a newspaperman to suggest that God is watching over the Supreme Court of the United States. But it’s hard not to think of Isaiah 11:6 when thinking about the case known as Zivotofsky v. Clinton, with which, on the order of the Supreme Court, the lower courts will be wrestling in the months ahead. It is a case in which an American infant, born in Jerusalem, rose up to challenge the secretary of state of the United States. And he may yet illuminate the path to peace in the Middle East.

Zivotofsky is Menachem Binyamin Zivotofsky. He was born in 2002 to American parents at the Shaare Zedek Hospital in West Jerusalem. Two weeks before he was born, the United States Congress passed a law requiring the State Department to honor the request of any similarly born American to have his birthplace listed on his passport not as “Jerusalem,” as had been the practice, but “Israel.” When Master Zivotofsky’s parents lodged such a request, they were turned down by the secretary of state, setting the stage for the epic lawsuit that is now drawing toward a conclusion.

Although Mrs. Clinton is the named defendant, it would be inaccurate to suggest that this is a partisan matter. Secretary of State Colin Powell was the original defendant. When Mrs. Clinton was a senator, the bill in question passed the Senate unanimously. When President George W. Bush signed the measure, however, he said he wouldn’t enforce it, because it “interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs.” It turned out to be a point on which President Obama would agree with him.

The State Department is fearful of Arab reaction to any suggestion in a formal United States government document that Jerusalem is in Israel. The Justice Department took the view that because the Constitution gives the President the duty to “receive ambassadors,” the power to recognize foreign sovereigns is solely his. The lower courts refused to get involved, ruling that the disagreement was political, and the pundits seemed to think the matter was a lead pipe cinch for the government.

They failed, however, to reckon with the child’s lawyer, Nathan Lewin, a Washington-based constitutional attorney who has made 28 appearances before the Supreme Court. He runs, with Alyza Lewin, a father-and-daughter law office that specializes in cases affecting religious minorities. In Zivotofsky v. Clinton, Lewin took a highly unusual tack by arguing, at least in part, that the question presented by the infant Zivotofsky was actually less important than everyone was making it out to be.

It wasn’t, Lewin argued, about whether Jerusalem was in Israel or even who decided that question. It wasn’t about war and peace in the Middle East. It was merely about whether Congress could legislate on the wording of the birth documents whose issuance it funds via a State Department that it also funds. When the Supreme Court heard the matter last fall, it instantly became clear that big issues hang on the narrow point that Lewin was levying.

Justice Antonin Scalia signaled this in response to the Obama administration’s position that the President is the “sole instrument of foreign policy.” Spake The Great Scalia from the bench: “To say he’s the sole instrument simply means that congressmen traveling abroad, or globetrotting ex-presidents, nobody except the President of the United States pronounces the foreign policy. But it doesn’t necessarily mean that the President determines everything in foreign policy. He’s the instrument, but there is certainly room in—in those many cases for saying that Congress can say what the—what it’s—what the country’s instrument is supposed to do.”

One could almost hear the vast foreign-policy apparatus of the United States swing in its figurative chair and come to attention. And it only got worse for the administration, because the skepticism of its position came from justices on both the right and the left. At one point Justice Ruth Bader Ginsburg cornered the solicitor general, Donald Verrilli, into asserting that “the recognition power is exclusive to the President.” Then Scalia jumped in: “What if the recognition of a breakaway province of a foreign country by the United States will clearly provoke a war with that country? Would Congress have the power to decree that the President shall not recognize that breakaway province?” Verrilli responded by asserting that it would be “a situation in which the President would exercise that recognition power very carefully.” Quipped Scalia: “No, no. We have a foolish President.” This was met with laughter. “Contrary to our entire history, we have a…” More laughter.

Justice Sonia Sotomayor pressed a similar question: “Let’s assume that a dozen nations said this designation on the passport is—we view as an act of war.…Would that then permit the President to ignore Congress…” The court’s transcript indicates she let the last word hang in the air. Lewin replied that “if Congress determines that in any event this is what the passport should say, then that is Congress…” He was interrupted by the justice, but his point was clear enough. It is to Congress, after all, that the Constitution delegates the enumerated power to declare war in the first place.

In March, the Supreme Court made what the New York Sun called “short work” of Secretary of State Clinton’s claim. It voted eight to one that the lower courts could not dodge the issue. Chief Justice Roberts himself wrote that the courts weren’t being asked to decide whether Jerusalem is the capital of Israel. They were being asked to decide the authority of Congress. So now the matter is back with the United States Court of Appeals. The Chief Justice told them to stop fooling around. “Resolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do.”

HOW COULD THIS END UP as a step toward peace in the Middle East? My own view is that the evident nervousness of our State Department and government in respect of Israel’s claim to Jerusalem invites intransigence on the part of Israel’s enemies. The Congress understands this point. That’s why it passed the Jerusalem Embassy Act by such an overwhelming margin and legislated the rights it wants young Zivotofsky to have. If the courts finally make it clear that Congress is not constitutionally excluded from policy making on this question, and if Congress stands its ground, it will signal to Israel’s enemies that they are going to have to come to terms with reality. And it will leave the rest of us to marvel at the prophecy of Isaiah and the power of a little child who gets his back up.

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).