The Presidential Power of Printing Passports


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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19 Responses

  1. Avatar Saul Degraw says:

    Good essay Burt.

    You are right that only Jerusalem and Israel are the only locations that could bring this case to the Supreme Court.

    I agree with Kennedy and possibly with Breyer. The problem with Breyer’s view is that it would keep this open as a war between President and Congress. I suspect that the majority wanted to get this particular issue to shut down and not go on. At least on a unconscious level.

    I’ve mentioned this before but Americans Jewish voters are overwhelming Democratic and we tend to live in concentrated enough areas that it is possible we can be game changers in some elections. Sheldon Adelson might be a big player in GOP politics but he does not speak for a majority of views. One of the most unfortunate tendencies in political punditry* is asking every two to four years “Is this going to be the year that Jews go into the GOP column?” I think this question has been asked for as long as I have been alive and the answer as always been no. The GOP tries to use Israel as a wedge issue without realizing that many Jews do care about Israel but we have other policy concerns and those are often not found in the general GOP agenda.

    *Other examples of unfortunate political punditry include talking about the undecided voter or independents are defining these two groups as white, suburbanites/exurbanites with Republican sympathies.Report

    • Avatar Barry says:

      “Other examples of unfortunate political punditry include talking about the undecided voter or independents are defining these two groups as white, suburbanites/exurbanites with Republican sympathies.”

      The biggest, IMHO, is defining ‘Real Americans’ as white, center/right people. For examples see Fournier’s columns, or Fox News.Report

      • Avatar morat20 says:

        There was the unfortunate recent op-ed explaining how Hillary was turning her back on her husband’s ‘broader coalition’ and seeking Obama’s narrower one, if you need another data point.

        I seem to recall Obama’s percentage of the popular vote was…considerably higher…than Bill’s. But of course, his percentage of the white vote wasn’t as high.

        I do always love the stories about how X wouldn’t have been elected if, I dunno, all black voters just disappeared. Or all women. There’s very rarely a story about how X wouldn’t have been elected if the white male vote was removed.Report

  2. a “political question,” the sort of issue that the Courts ought to and often do refuse to decide because the matter is to be resolved in political relations between the President and Congress.

    Like the precise formula to be used in deciding where to require pre-clearance via the VRA?Report

  3. Avatar Damon says:

    “First of all, if it weren’t Israel and Jerusalem at issue here,..”


    Really, all this time and money over something this damn trivial? Shesh.Report

  4. Avatar Francis says:

    While I haven’t had time to read the decision (and probably won’t until the weekend), my reading of Bro. Likko’s analysis of Scalia’s opinion once again infuriates me.

    There are no such things as “real-world facts” in Supreme Court cases. There is the administrative record on appeal and nothing else. Whether it’s voting rights cases, police brutality cases or this one, Supreme Court justices have no business bringing in their personal beliefs.Report

    • Avatar gingergene says:

      Exactly. Isn’t Scalia the one who said that a person’s innocence of the crime of murder was no impediment to the state executing him?Report

    • Avatar Burt Likko says:

      In Scalia’s defense, SCOTUS gets the record on appeal, and the law. In the record, or at least in oral arguments, both Zivotofsky and the Government agreed that Israel has been in de facto control of Jerusalem since 1967, so Scalia is not totally out of bounds to reference that point.

      And while I agree with Justice Breyer’s concurrence here, I think the majority owed a stronger response to Scalia’s citation of the Philippine Independence Act than it gave. With respect to the Philippines, the legislative and executive branches agreed that the Philippines should be independent, so there was no need for the courts to be involved. When, as in this case, the executive and legislative branches disagree, it’s liable to be a political question and the resolution of such a matter should be left to the political process.Report

  5. Avatar Kazzy says:

    Would Scalia accept “Jerusalem, Palestine” or some such configuration a legitimate option? Why or why not?Report

    • Avatar Burt Likko says:

      Based on Scalia’s reasoning, if Congress passed a law saying passports should say “Jerusalem, Palestine” then that’s what Scalia would say the passports should read. Or, if the President independently decided they should say “Jerusalem, Palestine” and Congress remained silent on the matter, then that’s what they should read.

      Kennedy’s reasoning is, it’s an exclusive power, so the passports say what the President says they say, and Congress doesn’t get a vote any more than the President gets to name the Speaker of the House.Report

      • Avatar Kazzy says:

        “…Scalia might have been willing to allow individuals to opt for their passports to say either “Jerusalem, Israel” or just “Jerusalem” as a matter of their individual choice and suggesting that no reasonable person would see a governmental imprimatur on such a decision, that it is a matter of identity rather than of diplomacy.” I’m asking if he would have seen the Palestine option as a similarly legitimate matter of identity.Report

        • Avatar Burt Likko says:

          I dunno. You’d have to ask him.Report

          • Avatar Kazzy says:

            Sorry. I didn’t intend for you to speak on his behalf. It just struck me that he was taking a position that something should be a matter of choice without thinking fully through the nature of that choice.Report

            • Avatar David says:

              Yeah, if it’s a matter of choice, could I choose to put down “Montreal, USA” or “El Paso, Mexico” or “Seoul, Japan” or “Constantinople, Greece” if I so chose? Scalia’s idea that these questions aren’t diplomatic questions – because the President could just define the legal requirements for passports as distinct from the US recognition of countries – seems to seek to define how others receive the information…Report

              • Avatar Kazzy says:

                I mean, it seems to me that the place of birth on a US Passport is largely immaterial in the grand scheme of things. But I don’t really know how they work. So if we want to give people a choice, then I say we give people a choice and if they want to say Mars, so be it.

                But if it does matter for any reason, than there should be consistent rules. As I understand this case (and IF I do it is solely because of Burt’s fantastic write up!), the Justices were charged with deciding who gets to make the rules.

                So, despite what some news agencies are reporting, it wasn’t ruled unconstitutional to have a passport that says the person was born in Jerusalem, Israel. Instead, the Justices decide that the Presidents make this particular rule and the Presidents currently practice that that is not an option. A future administration can change that.

                Do I have that right, @burt-likko ?Report

              • Avatar Burt Likko says:

                Quite right. Obama could change his mind, or one of his successors could adopt a different policy. That’s unlikely as I read things, but this issue depends upon the good judgment of the President.

                As for the importance, I was reminded on NPR this morning that passage of section 214 caused protests in some principally Muslim countries. It might not seem like a big thing in and of itself, but anything to do with the Middle East is pregnant with violence.

                And, it’s also more broadly important in that it is a groundbreaking precedent regarding division of powers within our own government.Report

  6. Avatar Tod Kelly says:

    These summaries have all been excellent, Burt, and this one is no exception.

    I kind of wish more places in the media covered this kind of stuff exactly like this.Report

  7. Avatar Kim says:

    In a country where the act of refraining from buying goods is considered a form of treason… Is there any way to grant political asylum for being forbidden to Not Buy Something?

    [I do apologize for talking about the wrong Supreme Court, but I find myself pondering this question anew because of Burt’s post. Is it possible that one must say that a Chinese citizen be from PRC in order to give them asylum? Must asylum come in reference to the political entity?]

    (I’d rather Breyer’s opinion — “stay out of it” win, although I sympathize with the “founders principle” of “don’t let the president become a king”… i don’t think it’s as relevant here as it could be).Report