From the transcript of yesterday’s oral argument, one can pretty much predict how the Supreme Court justices will rule in Zivotofsky, on the law giving Jerusalem-born Americans the right–if they request it–to have their passports show their place of birth as “Israel.” The four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) seemed prepared to hold that the law improperly impinges on the president’s “recognition” authority; the four conservative Justices (Roberts, Scalia, Thomas, and Alito) seem prepared to hold it does not; and the case will likely be decided by Justice Kennedy’s vote. His position seems reflected in the question he apparently had carefully prepared, and which he asked Zivotofsky’s counsel (Alyza L. Lewin) before she had even completed the second sentence of her argument:

JUSTICE KENNEDY: Suppose that – suppose that the President and the Secretary of State put on the passport place of birth – I’ve written it out – the place of birth on this Jerusalem-born citizen’s passport has been listed as Israel at the holder’s request. The designation 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. Could the president, under existing statute, and the Secretary of State, under existing statute, put that statement on the passport?

MS. LEWIN: Yes, Your Honor, they could put that statement on the passport. [Transcript at pp. 3-4].

Justice Kennedy made the same point when Solicitor General Donald B. Verrilli Jr. argued that showing “Israel” on Zivotofsky’s passport would “communicate a message that contradicts the official recognition position of the United States”:

JUSTICE KENNEDY: But why couldn’t you have a disclaimer of the kind that I’ve explained to the Petitioner’s counsel. She said that would be perfectly lawful, for you to say it’s not the position of the State Department, this is not an indication that Israel is – has jurisdiction over Jerusalem. … Why wouldn’t that solve the problem? [Transcript at p. 28].

Later in the argument, after the solicitor general acknowledged that Congress has the authority to regulate passports, but asserted that Congress “can’t use that authority to command the Executive Branch to issue diplomatic communication that contradicts the government’s official position on recognition,” Justice Kennedy made his point a third time:

JUSTICE KENNEDY: I don’t – I don’t like to, you know, just keep going back to the same thing. It seems to me that you could draft a statement that actually furthers your position. “This passport does not indicate that the government of the United States and the Secretary of State recognized that Israel has sovereign jurisdiction over [Jerusalem],” and you’d actually be making your case. [Transcript at pp. 42-43].

In other words, the administration could do the same thing President Clinton did when Congress enacted a law in 1994 allowing Americans born in Taiwan, if they requested, to have their passports show their place of birth as “Taiwan,” rather than “China.”

President Clinton complied with the law but issued a statement that it did not affect the U.S. “one China” policy. Zivotofsky’s case is even easier: in the Taiwan situation, anyone looking at the passport would know the State Department had permitted the holder to substitute “Taiwan” for “China”; the law regarding Jerusalem provides only that “Israel” would appear in the requesting person’s passport–not “Jerusalem, Israel.” As Justice Scalia pointed out, no one looking at the passport would even know what city the holder was born in.

Courts generally strive to avoid holding a law unconstitutional, and try instead to “harmonize” the parties’ positions. The Court could hold that where (1) the petitioner does not assert that putting “Israel” in his passport constitutes an official recognition of Israeli sovereignty over Jerusalem; (2) the law permits the president, if he wants, to put a statement on the passport stating that it is not such a recognition; and (3) the statement is not even necessary: since the passport of a requesting citizen will include no reference to “Jerusalem” at all, the law does not constitute such a recognition and thus does not improperly impinge on presidential authority. The oral argument and Justice Kennedy’s questions indicate this may be where the Court will end up.

Such a resolution would mean that Congress would keep its statute, Zivotofsky would get his passport, and the president would retain his recognition authority. It may turn out, in other words, that there was no reason for the administration to make a federal case out of Jerusalem, much less scrub the White House websites.