The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Anthony Kennedy opened oral arguments in Zivitofsky v. Kerry yesterday by asking the plaintiff's lawyer, Alyza Lewin, if the president could put a statement on passports that says:
This designation [of Jerusalem as a place in Israel] 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.
Lewin agreed that Congress could add such a disclaimer. The disclaimer option negates any suspicion that the president's compliance with the Jerusalem passport law represents a change in the U.S. position on Israel. It undermines the argument that the Executive is being forced by Congress to say take a foreign policy position.
Kennedy raised the issue again with the Solicitor General, who also agreed that a disclaimer could be added. He contended that it would "not solve the problem because the issuance of the disclaimer is a credibility hit." That sounds like rather general hand-waving. A potential "credibility hit" does not invalidate proper legislation. Moreover, one would think such a statement would enhance the Executive's credibility abroad: he would be standing by his policy on Jerusalem despite congressional pressure and an unfavorable Supreme Court ruling. That is the stuff credibility is made of.
The idea of such a disclaimer actually originates with the Executive branch itself (thus Dahlia Lithwick is wrong to describe it as "a strange compromise" floated by Kennedy).
The Executive adopted such a disclaimer in response to an earlier law allowing "Taiwan" to be designated as a place of birth, despite the U.S. not recognizing it. In response to the law, the State Department changed its Foreign Affairs Manual to allow for such a designation, and put it the following note in a big box for emphasis:
NOTE: The United States does not officially recognize Taiwan as a "state" or "country," although passport issuing officers may enter "Taiwan" as a place of birth.
The addition of the disclaimer greatly undermines claims that the Taiwan passport law is easily distinguishable from the Jerusalem one. Those arguments hold that because of the U.S.'s "One China" policy, listing Taiwan would not be interpreted as a recognition. Yet the addition of the disclaimer suggests concerns about foreign perception were at play with Taiwan.
(The One China rebutall is also incoherent on its own terms. It assumes that listing Taiwan would not be interpreted as a change in that policy. One could just as easily say no one will be confused by designating "Israel" for Jerusalem because of the U.S.'s well-known no-sovereign-in-Jerusalem policy.)
Indeed, the Executive already uses such disclaimers for Israel in a publication of an Executive agency, the National Bureau of Geographic names, which refers to "Jerusalem, Israel." So the disclaimer is a known tool, used by the Executive in various contexts to enable talking about places in descriptively convenient ways without making it into a recognition issue.
The disclaimer was discussed in briefs, as well as by plaintiff's counsel the last time the case went to the Court in 2011. I discussed the possibility of even putting it on the passport in a post last week as in illustration of how the law does not proven the Executive from maintaining its foreign policy.
This is not a comprise so much as a proof that Congress is not hijacking the Executive's ability to maintain a recognition power, and that the birth place on the passport does not constitute a recognition.