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Oral Arguments for M.B.Z. v. Clinton: the “Live”-Blog

November 7th, 2011

Does post-facto live-blogging defeat the purpose? Perhaps, but as the Supreme Court doesn’t allow electronics, I had to take notes on today’s oral arguments the old fashioned way. Check out this FantasyCast for background on the case, then read on for the play-by-play and a summary by each of the Harlan Fellows.
9:09am – Just saw the Zivotofsky family in the coatroom — That counts as a SCOTUS celebrity sighting, right?
9:15am – We take our seats as the clerks drop off piles of papers and mugs of coffee at each Justice’s seat.
10:00am – On the dot! Showtime: Buzzing noise, Justices file in, gavel bangs, “Oyez, oyez, oyez!”
10:03am – Counsel for the Petitioner, Nathan Lewin, steps up and begins arguing that Congress has the power to make such passport decisions as they did in this case; saying Congress and the President share foreign policy decision-making power.
10:07am – Justice Ginsburg asks:”[In this case,] why does Congress trump the Executive?” Lewin answers: because this case is about a passport, not a foreign policy decision.
10:11am – Petitioner argues that Congress passed the law using their power to regulate immigration and international commerce.
10:14am – Justice Scalia wonders why this is any of the Court’s business and says he doesn’t want to interfere with “inter-branch hand-wrestling.” Lewin argues that the Court has the power to “scrutinize” a President’s foreign policy rationale. Justice Scalia provokes some courtroom chuckling: “Congress has many clubs with which to beat the Executive.”
10:20am – Justice Kagan lays down the law: As she sees it, this passport statute had nothing to do with Congress’ power to regulate immigration and was instead a foreign policy decision. Tells Lewin, “Prove to me that I’m wrong,” to which he quips, “Well, you’re wrong!”
10:21am – Lewin claims the statute, in requiring the State Department to, upon request, list Jerusalem as part of Israel, was not intended to create a “political brouhaha.” Hushed murmurs and raised eyebrows around the courtroom.
10:23am – Lewin notes that the statute “does say that the individual passport holder can choose to say Israel or can keep it as Jerusalem, and if he’s born before 1948 he can say Palestine,” to which Justice Kagan responded: “you’d have to be very old to say Palestine.” 78 year old Justice Ginsburg quickly responded “not all that old” which brought proceedings to a brief halt as the entire courtroom–including the bench–doubled over in laughter.
10:28am – Ginsburg brings up the political question issue; Petitioner denies the doctrine’s relevance and reserves the rest of his time for rebuttal. Now it’s Solicitor General, Donald B. Verrilli, Jr.’s turn to argue for the Respondent.
10:30am – Verrilli challenges the Petitioner’s basic argument that Congress and the President have co-equal foreign affairs power; argues that the Constitution gives exclusive power to the Executive.
10:37am – Chief Justice Roberts and Justice Ginsburg redirect the questioning to the political question doctrine, even though the Respondent focuses mainly on the merits — the separation of powers issue.
10:41am – Justice Kennedy: “It’s always awkward for us to tell Counsel what’s in their best interest…”; he wonders why Verrilli isn’t arguing that the case is non-justiciable, as the D.C. Circuit Court’s opinion held.
10:44am – Roberts asks a hypothetical: Would Congress be infringing on the President’s power if they required a passport to say “Jerusalem, Israel (disputed)”? Respondent says yes, to Roberts’ surprise (as this declaration would be consistent with State Dept. policy).
10:45am – Scalia pushes back a bit: The President is the “sole instrument” of foreign policy, but doesn’t Congress have some power too?
10:54am – Justice Breyer asks for a word on the political question issue, which the Respondent has steered away from. Justice Sotomayor joins in, pointing out that whether they label this issue a “political question” is important.
10:58am – Roberts gives the Respondent a few more minutes to field questions on the political question topic. Justice Sotomayor asks the SG: if twelve nations all announced that they would declare war against the United States if the President recognized the sovereignty of another nation, would Congress be powerless to act? The SG responded that, under those circumstances, he did not believe that the President would recognize a foreign nation. Quick as always with a retort, Justice Scalia asked him to imagine “We have a foolish President” and added sarcastically “… contrary to our entire history.”
11:00am – Lewin returns for a 6 minute rebuttal, emphasizes that a passport is merely a form of personal identification, not a “diplomatic communication” as the Respondent argued.
11:05am – Justices Thomas, Breyer, and Kennedy get fidgety in their high-backed reclining chairs as Sotomayor asks a final hypothetical.
11:07am – End of arguments, while another case is up after MBZ, there’s a “mass exodus” out of the courtroom. (Credit to the AU Law Professor sitting next to me for that pun.)
Allie’s thoughts: Lewin did an excellent job making a tough case for the Petitioner. Ultimately though, it seems like a majority of the Supremes were not on board with his argument that Congress and the President have equal foreign affairs power under the Constitution and that the “passport statute” was not a foreign policy declaration. What will be interesting is how the Court will deal with the political question issue, one that the SG continually move away from. There is some sense that because this action involved an express conflict between branches, rather than a premature request for the Court to decide the issue, the case will be decided on its merits.
Charlie’s thoughts: The Justices pressed the Solicitor General hard to find a limit to his argument (is the President truly the sole organ of American foreign policy?) and seemed surprised at some of his responses. However, to the extent that the Court’s opinion can be gleaned from oral arguments, it looked this morning like at least a majority of the Justices agreed with the Government that § 214(d) unconstitutionally infringes upon the President’s ability to shape American foreign policy. Justice Kennedy seemed to announce the Court’s mood early when he referred to the petitioner’s argument as a “crabbed” interpretation of the President’s foreign policy power.
The Court has posted the transcript for today’s argument here.