On Monday the Supreme Court wrestled with a case that had it all: foreign policy, constitutional history and a 12-year-old petitioner, Menachem B. Zivotofsky, a U.S. citizen born in Jerusalem who wants his passport to list his birthplace as Israel. Congress passed a law allowing that option, but the George W. Bush and Obama administrations have refused to enforce it, fearful that doing so would undermine the longstanding U.S. position that the status of Jerusalem must be determined in negotiations.
The argument also produced some great sound bites (though you'll have to wait until Friday to listen to the audio). Justice Antonin Scalia mocked the Obama administration's insistence that there would be diplomatic consequences if Menachem got his way. "If it is within Congress' power, what difference does it make whether it antagonizes foreign countries?" he asked Solicitor General Donald Verrilli, the administration's lawyer. Justice Elena Kagan suggested that the law allowing an "Israel" option for people in the boy's position was a "very selective vanity plate law."
There are two principal issues in the case: 1) Does the passport provision amount to an attempt by Congress to recognize Israeli claims to Jerusalem? (The obvious political answer – "Of course!" – may be different from the legal answer.) 2) Does the president have the exclusive right to recognize foreign governments, a power the administration locates in the Constitution's statement that the president shall "receive ambassadors and other public ministers."
But the most interesting question about the case is one the court can't consider: Did all of the members of Congress who approved the passport provision – part of a larger section titled "United States policy with respect to Jerusalem as the capital of Israel" – really want to see it carried out? Or did at least some of them cast an easy pro-Israel vote confident that the president, regardless of party, would ignore their action?
Whether the issue is arms sales to Arab nations, the recent war in Gaza or nuclear negotiations with Iran, Congress is predictably more pro-Israel than the administration – any administration. To some extent that difference reflects conviction; some members of Congress sincerely agree with Mitt Romney that there can never be "an inch of difference between ourselves and our ally, Israel.'" But support for Israel, even uncritical support, is also good politics. For many members of Congress, it makes sense to let the president worry about serving as an honest broker between Israel and the Arabs.
This is a variation on the propensity of legislators at both the state and federal levels to pass legislation they know violates the Constitution, confident that the federal courts will intervene to keep those popular laws from going into effect. It makes a cynical sort of sense. But only if the courts do their job.