Marty Lederman joins into my discussion with Jack Goldsmith about the Art. I basis for Congress’s action in the Jerusalem passport case, Zivotofsky v. Kerry, which will be argued before the Supreme Court on Monday. He largely sides with Goldsmith’s suggestion that the law goes beyond any enumerated powers.
Marty basically agrees with me that Congress has authority to regulate the contents of passports, such as what information is on it, as this pertains to foreign travel. However, the law in question does not do any of that, he says. Rather, it tries to force “the Executive branch to say…. something about” the “sensitive issue of sovereignty.” The fundamental assumption here is that that the passport is “a form of official government speech.” Thus, argues Lederman, “foreign audiences will reasonably understand the word “Israel” on the passports of thousands of U.S. citizens born in Jerusalem to be a statement on behalf of the United States that Jerusalem has (and/or ought to have) sovereignty over that city.”
His discussion makes many good points, but for reasons of space I will focus on what I think it gets wrong. I will address several broader interpretive issues here. In a subsequent post, I will focus on the argument that place-of-birth line of the passport is Executive “speech.”
1. Lederman agrees that the law is formally a regulation of passport content, which is presumptively valid. The problem he sees with it goes to its motive. Even assuming his characterization of the motive is right (more on that below), proper exercises of Art. I authority do not become unconstitutional because Congress was “thinking” the wrong thing, especially when there are not federalism concerns involved. (See Texas’s amicus brief, pg, 28-29).
2. Lederman speaks of the law as one relating to the “sovereignty” over the city. That is not the case. The law affects none of the consequences or a sovereignty recognition (Senate brief, pg. 28-29). Characterizing a place as being in “Israel” is not a determination of sovereignty. At most, it is an indication referring to a place by the de facto power. This is consistent with U.S. policy that “the Government of Israel currently occupies and administers the… West Bank.” It is at least potentially useful to note the current administering power entity over a person’s birthplace, since this may well be a place a person is particularly likely to travel to (that helps explain why birth places on passports are generally updated to reflect the current power in control, not the one at the time of birth, even though the bearer was not certainly not “born” in the new country).
3. There are many examples of such legislative designations indicating merely views on de facto control (see pg. 18-20 of our amicus). For example, the U.S.-Israel Free Trade Agreement Implementation Area Act, discussed in our amicus brief, allows goods from Israeli settlements in the West Bank to be labeled “Israeli,” and entered as such by customs officials. No one has ever suggested that this is a recognition of Israeli sovereignty, or that such labels are government speech. Rather, it at most an acknowledgement of Israeli administration, or de facto control, which is relevant for trade purposes. The Gulf of Tonkin resolution’s reference to “North Vietnam,” to take another example, did not constitute a recognition.
4. One implication of Lederman’s view is foreign audiences’ understanding of a statute controls its constitutionality. That seems to be a fairly novel doctrine. Foreign audiences may misunderstand a great many things about the separation of powers, the purpose of particular statutes, and so forth. That should not make statutes unconstitutional.