Zivotofsky v. Clinton (10-699)

argument 10-699

Zivotofsky v. Clinton

Supreme Court of the United States 1h 3m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

▲ 0

Transcript

jump: chapters · speakers · find in transcript

Transcript

Transcript generated automatically by AI and may contain errors.

What is the central constitutional issue in Zivotofsky v. Clinton?

John G. Roberts 0:02

We'll hear argument first this morning in case ten six nine nine zip Zivotowski versus Clinton. Lewin.

Mr. Lewin 0:10

Mr Mr Chief Justice, and may it please the court. In its recent decisions in Medellin versus Texas and in Hampton versus Rumsfeld, This Court approved and applied the familiar tripartite scheme that Justice Jackson articulated in the Steel Caesar case. When the President takes measures incompatible with the expressed or implied will of Congress His power is at its lowest ever. In that instance, said Justice Jackson, His claim to a power at once so conclusive and preclusive must be scrutinized with caution. to preserve the equilibrium established by our constitutional system.

Anthony M. Kennedy 0:58

Well Mr Lewin, what power is Congress exercising here?

Mr. Lewin 1:02

Justice King, Congress has exercised its power over passport uh uh the issuance of passports under the immigration, naturalisation and foreign commerce powers that Congress has. It has enacted passport legislation back in eighteen fifty six, in nineteen twenty six, it can control what the contents of a passport are to be, what its duration may be, how the application is to be made. And we say this is an identification portion of the passport.

Samuel A. Alito 1:34

Do you think it's relevant that the title of Section two hundred fourteen is United States policy with respect to Jerusalem as the capital of Israel?

Mr. Lewin 1:44

Well, w we think and uh we've cited, I guess, in footnote two of our brief, a number of recent cases of this court that have said that you take each statutory provision independently and determine its constitutionality. True, Congress has a broader view with regard to the policy of Jerusalem being part of Israel than the executive branch has had since nineteen Forty eight. However, That purpose is not determinative of what the constitutionality is of subsection D. Moreover.

Unknown 2:24

You you're not claiming exclusivity in Congress. You say Foreign relations is a a shared power. So if it is a shared power Why does Congress. Trump the executive.

Mr. Lewin 2:43

I because precisely because under the standard of the C steel seizure case and this tripartite scheme, if Congress determines that what the President has done and this is a statute which is really very narrow and deals with past conduct by the the uh uh executive branch as it were, it does not hobble the president in terms of future foreign policy. Well under your

Unknown 3:09

th on under your theory, and this is just following on Justice Ginsburg's question, I think. Um Well on the UF, what foreign relations determinations are for the President alone to make?

Mr. Lewin 3:21

Foreign relations determinations are are not left to the President alone. Are

Unknown 3:25

there any foreign relations determinations that are for the President alone to make under your theory of the case?

Mr. Lewin 3:32

Yes.

Unknown 3:33

And those are

Mr. Lewin 3:34

those are diplomatic communications. In other words, it's the President who makes it

Unknown 3:39

In other words, who gets the telegram or something?

Mr. Lewin 3:41

Well, who issues the communication to the foreign government? Who determines there are certain things that the President alone does because he's the one who implements foreign policy.

Unknown 3:54

Is there any uh treatise writer or decision of this court that uh supports such a narrow, uh crabbed interpretation of the President's foreign affairs power?

Mr. Lewin 4:06

Well with all respect, Justice Kenny, we don't think it's crabbed. We think that that is exactly what Justice Jackson was referring to and that's what this Court has said. in the Medellin case and it. and in Hamden as well. That if Congress is a very important thing to do. Of course in part

Unknown 4:21

the Jackson tripartite um division, this this famous division he had, I think assumes the validity of the Congressional statute at the first step of inquiry. And here that's the whole question.

Mr. Lewin 4:39

I don't know whether uh it's limited to the assumption with regard to the congressional statute. If Congress says, as it did in this case, we disapprove of the State Department's view that passports should not contain the n the the the the d identification of Israel for people who were born in Jerusalem Uh That is Congress disapproving of what the State Department and past State Department policy.