The rule of law and the rules governing American passports

This past Monday, June 8, 2015, the Supreme Court decided in Zivotofsky v. Kerry that a federal statute, duly passed by Congress and signed by President George W. Bush, could not compel the State Department to allow U.S. citizens born in Jerusalem to have their place of birth in their passports be listed as “Israel.” The Court decided that the President has exclusive (even though not really explicit) constitutional authority to recognize foreign nations; that recognition includes recognition of particular territories as within, or not within, those nations’ sovereignty; that while the U.S. recognizes Israel, it has not recognized Jerusalem as within the sovereignty of either Israel or any other nation; and that compelling the State Department to issue passports that implicitly viewed Jerusalem as part of Israel would be inconsistent with the limits of the executive’s recognition decision.

This is a decision with potentially significant implications in the Middle East, and perhaps even greater implications for longstanding, unsettled questions concerning the dimensions of the power of the President and of Congress, particularly in the field of foreign affairs. In U.S. constitutional terms, one of the most encouraging features of the case is that, as Professor Marty Lederman has noted, although a majority of the Court endorsed the President’s exclusive and overriding authority in this instance, 8 of the 9 justices steered clear of sweeping affirmations of Presidential primacy of the sort that have sometimes been uttered and that rose to prominence during the Bush presidency. (Obama too exercises a lot of executive authority – too much, some observers say – but the rhetoric of power, at least, has been more restrained under him.)

The complicated constitutional issues of the case are already getting a lot of attention. I want to look at the case in cruder, but still illuminating, ways. Here’s one: the role of religion or ethnicity. The justices in the majority, who rejected Zivotofsky’s effort to get “Israel” listed as his birthplace in his U.S. passport (Zivotofsky, by the way, is still a child; his case was brought “by his parents and guardians,” Mr. and Mrs. Zivotofsky), included both of the Jews who sit on the Supreme Court. To whatever extent a “pro-Israel” position would have urged the opposite result, these two justices, Breyer and Ginsburg, declined to vote on religious/ethnic grounds – and that’s exactly what we should hope for from judges committed to the rule of law.

But here’s another: the role of politics. Breyer, Ginsburg, Kagan and Sotomayor are the four liberal members of the Supreme Court, and all of them voted with the majority, giving a victory to President Obama. Roberts, Scalia and Alito are all among the conservative members of the Court, and all of them dissented. Only Justice Kennedy, in many ways a conservative justice but also recurrently a swing voter, and Justice Thomas, certainly conservative but listening to his own jurisprudential drummer, voted in a way that seems contrary to their probable political inclinations.

In saying this I don’t mean that the justices sacrificed their principles for politics – something that, if it happened, would be a corrosion, or perhaps a breakdown, of the rule of law. That could happen, but the seeming fit of some justices’ votes and politics by itself is far short of showing it. Rather it suggests something natural and even good: that the justices reflected on their principles in light of the circumstances they addressed. In doing that, they did no more than what the justices in the famous Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)) may have done. There a majority of the Court rejected President Truman’s claim of authority to seize the nation’s steel industry so as to head off a strike that might have imperiled the Korean war effort, and set a crucial precedent on the dimensions of presidential and congressional power. I've seen it suggested that the Steel Seizure justices may well have reacted to the President’s claims of power in the context of disquiet about the war that then was being waged -- and context does, indeed, matter.

And here’s one more: the role of rhetoric. Justice Scalia dissents, and so he finds himself in disagreement not only with the majority but with Justice Thomas, who concurred in the majority’s result as to the passports but on his own, startling rationale. Here’s what Scalia says about Thomas’ rationale:

            Whereas the Court’s analysis threatens congressional power over foreign affairs with gradual erosion, the concurrence’s [Thomas’s] approach shatters it in one stroke. The combination of (a) the concurrence’s assertion of broad, unenumerated “residual powers” in the President …; (b) its parsimonious interpretation of Congress’s enumerated powers …; and (c) its even more parsimonious interpretation of Congress’s authority to enact laws “necessary and proper for carrying into Execution” the President’s executive powers …; produces (d) a presidency more reminiscent of George III than George Washington. (Scalia, J., dissenting, at page 19.)

This is strong stuff. An old country song lyric talks about how ways people can part: “when you leave that way, you can never go back." Do these words mark a lasting divide between two of the most conservative members of the Supreme Court? And could that divide have some impact on the Court’s future judgments? The rule of law, whatever exactly it consists of, is a regime fashioned by people, and this personal divide may affect the shape of US law.