Menachem Binyamin Zivotofsky, by His Parents and Guardians, Ari Z. and Naomi Siegman Zivotofsky v. Hillary Rodham Clinton, Secretary of State

Oral argument transcript · No. 10-699 · October Term 2011 · argued November 7, 2011 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Nathan Lewin, Washington, D.C., for the petitioner
• Donald B. Verrilli Jr., Solicitor General of the United States, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 10-699, Zivotofsky v. Clinton. Mr. Lewin. ORAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF THE PETITIONER

Nathan Lewin: Mr. -- Mr. Chief Justice, and may it please the Court: In its recent decisions in Medellin v. Texas and in Hamdan v. Rumsfeld, this Court approved and applied the familiar tripartite scheme that Justice Jackson articulated in the Steel Seizure case. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. 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.

Justice Kagan: Well, Mr. Lewin, what power is Congress exercising here?

Nathan Lewin: Justice Kagan, Congress has exercised its power over passport -- the issuance of passports under the immigration, naturalization, and Alderson Reporting Company Official foreign commerce powers that Congress has. It has enacted passport legislation back in 1856, in 1926. It can control what the contents of a passport ought to be, what its duration may be, how the application is to be made. And we say this is an identification -­

Justice Alito: But do you think -­

Nathan Lewin: -- portion of the passport.

Justice Alito: Do you think it's relevant that the title of section 214 is "United States Policy With Respect to Jerusalem as the Capital of Israel"?

Nathan Lewin: Well, we think -- and we've cited I guess in footnote 2 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 1948. However, that purpose is not determinative of what the constitutionality is of subsection (d). Moreover -­

Justice Ginsburg: But you say, Mr. Lewin, that -- you're not claiming exclusivity in Congress. You say foreign relations is a shared power. So, if it is a shared power, why does Congress trump the executive?

Nathan Lewin: Because -- precisely because Alderson Reporting Company Official under the standard of the 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 executive branch, as it were. It does not hobble the President in terms of future foreign policy.

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

Nathan Lewin: Foreign relations determinations are not left to the President alone.

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

Nathan Lewin: Yes, Justice Kennedy.

Justice Kennedy: And those are?

Nathan Lewin: Those are diplomatic communications. In other, it's the President who makes -­

Justice Kennedy: In other words, who gets the telegram or something?

Nathan Lewin: Well, who issues the communication to the foreign government, who Alderson Reporting Company Official determines -- there are certain things that the President alone does because he's the one who implements foreign policy.

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

Nathan Lewin: Well, with all respect, Justice Kennedy, 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 -- and in Hamdan as well, that if -­

Justice Kennedy: Of course -­

Nathan Lewin: Congress does not authorize -­

Justice Kennedy: -- in part the Jackson tripartite division, 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.

Nathan Lewin: I don't know whether 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 -- the identification of Israel for people who were born in Alderson Reporting Company Official Jerusalem, that is Congress disapproving of what the State Department and past State Department policy has been.

Justice Sotomayor: Mr. Lewin, you were cut off earlier when you were saying this reading doesn't hobble the President in the future. It says anybody born in -- in Jerusalem can have Israel listed, correct? What happens if there's a peace accord tomorrow, and Israel gives up any claim to sovereignty over Jerusalem? Is the President free to stop listing Israel on the passport?

Nathan Lewin: If -­

Justice Sotomayor: Or does he have to wait for Congress to change the law?

Nathan Lewin: I think he does have to wait for Congress to change the law.

Justice Sotomayor: So, you are hobbling the President with respect to situations that occur frequently -­

Nathan Lewin: Well -­

Justice Sotomayor: -- as happened in Egypt, sometimes overnight.

Nathan Lewin: No, but it may in some way, in a very remote possible way -- I mean, I think under those circumstances, if there were a peace treaty and if Alderson Reporting Company Official Jerusalem were handed over to a Palestinian state, I think Congress would repeal the statute. That's the point. Congress has the power, has the authority under the Constitution to enact laws, and it is Congress that makes the decision even with regard to foreign policy issues.

Justice Sotomayor: The Constitution requires ambassadors to be appointed with the consent of the Senate. It gives Congress the power of the purse. So, why don't -- why isn't the better view that we let Congress express its approval and disapproval in the mechanism set up by the Constitution to do so? Meaning, if the President recognizes a country that Congress doesn't want it to recognize, it can withhold approval of an ambassador. It could refuse to fund the embassy. It could do many other things. But what entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?

Nathan Lewin: With all respect, Justice Sotomayor, I think history demonstrates that that's simply not true, that in fact Congress has had equal, quote, "recognition power," if in fact that's a power rather than a ceremonial duty. We have in our reply brief gone through the fact that from Presidents Monroe, Alderson Reporting Company Official Jackson, Taylor, Lincoln, and even at the time of President McKinley, Congress said: We have the authority to be recognized -- to recognize.

Justice Kagan: Mr. Lewin, this gets back to the question of exactly what congressional power you're basing your argument on. You started by saying you were basing it on Congress's passport power, which is a function of its control over immigration issues. Now you're saying Congress has a co-equal recognition power. Which is it, or is it both?

Nathan Lewin: No. It's in the alternative, Justice Kagan; it is both. We submit first of all there is no exclusive recognition power in the President, if there is a recognition power, and we spell that out.

Justice Ginsburg: Does that go the full length of saying if Congress passed a law that says the United States recognizes Jerusalem as the capital of Israel and Jerusalem must be designated as the capital of Israel in all official documents -- suppose that were the law. I take it, from everything you've argued, your position would be, yes, Congress has that authority.

Nathan Lewin: We say Congress has that authority, but I have to add, Justice Ginsburg, that Congress has been very careful in the past and we believe it will be in the future to give the President Alderson Reporting Company Official broad authority. To the extent Congress has tried to do that, Congress has consistently said that the President can waive the moving of the embassy to Jerusalem, because Congress recognizes -- this is one of these very rare situations where Congress has said what the President has done and what the Department of State has done is simply wrong.

Justice Scalia: Mr. Lewin, you're -- it seems to me you're not arguing for a co-equal congressional power; you're arguing for a superior congressional power. You're saying whatever Congress says, the President has to comply with. Now, that's quite different from saying that they both have authority in the field. And if they both have authority in the field and they're exercising it in different fashions, I frankly would not be inclined to intervene. I would let -- I would let them conduct the usual inter-branch hand wrestling that goes on all the time, which probably means that if Congress cares enough, Congress will win because, as you say, it has an innumerable number of clubs with which to beat the executive. But if -- if the power is a co-equal power and they're both exercising it in a -- in a different way, why don't we just, you know, let them go at it? Alderson Reporting Company Official Why is it any of our business which is the better foreign policy position?

Nathan Lewin: We are not -- the Court is not being asked to determine what is the better foreign policy position. Congress has determined and -­

Justice Scalia: Congress is supreme, then? That is your position. Not -- not that Congress has co-equal authority with the executive, but Congress is supreme.

Nathan Lewin: No, there's two aspects to this, Justice Scalia. One is the recognition power. As to the recognition power, if it exists, Congress has it together with the President. But with regard to foreign policy and with regard to the question of whether Congress can trump the President, this is not a new proposition. The Court determined it in the Steel Seizure case. The Court more recently, in -- in approving Justice Jackson's tripartite scheme, approved it in Medellin v. Texas.

Chief Justice Roberts: Well, Medellin involved a situation where the President's purported exercise of authority changed domestic law, and not simply domestic law, but domestic State law. That seems to me to be quite a distinguishable circumstance.

Nathan Lewin: But what -- again, what Justice Alderson Reporting Company Official Jackson said was that when there -- the two are incompatible, then you look, the Court looks and scrutinizes, "subjects to scrutiny" -- those words are in Justice Jackson's standard -- scrutinizes what the President has done. And we submit in this case, if the Court were to look at the answers to the interrogatories in this case, what is the basis for the President's policy, if one scrutinizes it, we say in our brief, it's -- we call it trivial because what happens is the Department of State has said -- and, again, this is important in terms of this statute. All that happens with this statute is that 50,000 American citizens have the same passport as 100,000 other American citizens who were born in Tel Aviv or Haifa. It just says "Israel"; it doesn't say "Jerusalem, Israel"; it just says "Israel." And the State Department says that's justified because Arab countries or Palestinians may be upset if they misperceive -­

Chief Justice Roberts: What -- so, you're suggesting that the outcome of this of case would be different, from your perspective, if Congress said you have to say "Jerusalem, Israel."

Nathan Lewin: I say it's a different case, yes, absolutely. In this case, what -- the important Alderson Reporting Company Official thing about this case and this statute is that it gives the individual passport holder a choice.

Chief Justice Roberts: Why is it -- why is it a different case?

Nathan Lewin: It's a different case because if it were to say "Jerusalem, Israel," there would be more of an argument. Again, I'm not saying I would be here acknowledging that that's impermissible. But there would be more of an argument that it appears to be some official approval of Jerusalem being in Israel.

Chief Justice Roberts: So, would there be -- there would be a greater concern -- the concern on the part of the executive that there would be adverse political reaction would have a greater degree of credibility?

Nathan Lewin: Somewhat greater degree. Again -­

Chief Justice Roberts: And so, we're supposed to decide whether or not the executive is correct in saying that it's a significant problem. And he says, well, he says that, but we know foreign policy better; we don't think it's going to be a big deal.

Nathan Lewin: No, I don't think the Court is being asked to decide a question of foreign policy. Congress has decided that saying "Israel" alone does not Alderson Reporting Company Official present a foreign policy issue. Congress recognized that, with moving the embassy, there might be a foreign policy issue. So, they said that the President can waive that. With regard to this provision, Congress has said, no, there's not likely to be any foreign policy harm. And all that the Court is being asked to do is it's being asked to enforce the congressional conclusion, which is, we submit, exactly what the third level under Justice Jackson's test is: That if, in fact, Congress decides that what the President has concluded or the executive branch has concluded is wrong, it may -- and it has the constitutional power to say -- with regard to foreign policy, we can exercise our determination.

Chief Justice Roberts: I don't see Justice Jackson's analysis -- what he's saying -- and I guess I don't think it's as controlling as others might. He's saying when there's a conflict, it's a harder case.

Nathan Lewin: Yes.

Chief Justice Roberts: When there's -- when they agree, it's an easy case. When you can't tell, it's sort of a middle case. I don't see how that's very helpful in resolving the dispute before us.

Nathan Lewin: Well, because he says that when Alderson Reporting Company Official it's in the third category, the Court has an obligation, under those circumstances if it's going to keep the equilibrium of the balance of powers, to look at what the President's justification is. The word "scrutiny" is in there. That's not simply a phrase that Justice Jackson has taken out of the air. He says you're supposed to scrutinize it. And if you scrutinize it in this case, there's nothing other than the possibility that there would be a misperception by Palestinians. That's what the State Department is saying.

Justice Scalia: What -- what were we scrutinizing in the Steel Seizure case?

Nathan Lewin: I think in the Steel Seizure case, the Court was scrutinizing whether -­ notwithstanding the fact that Congress did not give the President the power to seize steel mills, nonetheless whether there could be some justification that, even in -- contrary to Congress's wishes, the President would be able to exercise that power.

Justice Scalia: And what presidential power would have supported that, the war power?

Nathan Lewin: Well, possibly the claim that as Commander in Chief under -- in the time of the Korean War he would be able -­ Alderson Reporting Company Official

Justice Scalia: Right, because he was claiming that the Korean War -­

Nathan Lewin: Entitled him -­

Justice Scalia: -- required that these -­ that these companies remain in business. And I guess we did scrutinize that. What did we conclude, that that was -­

Nathan Lewin: And I think the Court concluded that, no, that that did not justify the exercise of the President's power even though it was -­

Justice Scalia: But -­

Justice Kennedy: But that wasn't a case -­ that wasn't a case in which the Congress had said you may not seize mills. And that's what your case is. So, there's a difference.

Nathan Lewin: Well, but that's -- that's an a fortiori situation, Justice Kennedy. If Congress didn't even say you may not seize steel mills, but simply because they didn't give the President affirmatively the authority -­

Justice Kennedy: It -- it is if you assume that the statute is valid.

Nathan Lewin: Well, but the statute in this case -- again I come back to the fact that the statute in this case is a passport statute. Alderson Reporting Company Official

Justice Kennedy: If the statute is -- if the statute is invalid, we're in category one.

Nathan Lewin: Yes, but -­

Justice Kennedy: Or two.

Nathan Lewin: But the statute in this case is a -- on its face, a passport statute. There's no reason -­

Justice Kagan: But it's a passport statute that -­

Nathan Lewin: It's an identification.

Justice Kagan: I'm sorry. It's a passport statute that seems to have nothing to do with the immigration functions that passport statutes usually serve. It seems to have everything to do with Congress's declaration of a foreign policy, as opposed to Congress's exercise of power relating to immigration control. So, convince me that I am wrong on that.

Nathan Lewin: I think you are wrong on that, Justice, and let me explain why. (Laughter.)

Nathan Lewin: Let me explain why. Because it is clear from the history of this line on the passport that it is purely an identification of the individual; it is not an exercise of any foreign policy. Indeed, the passport statute itself says that a passport is "any Alderson Reporting Company Official travel document issued by competent authority showing the bearer's origin, identity, and nationality." And in this case, the history of this line on the passport demonstrates, I think conclusively, and the State Department has acknowledged it, that it is purely a means of identification.

Justice Alito: Are you suggesting -­

Nathan Lewin: And what Congress has said is, with regard to these citizens, we will permit them to identify themselves, like Congress permitted the Taiwanese to identify themselves.

Justice Alito: But are you suggesting Congress enacted this because they thought that if these individuals' passports simply said "Jerusalem," there would be an identification problem?

Nathan Lewin: Not be -- Justice Alito, it's not because there would be an identification problem. But there was -- Congress recognized that with regard to the 50,000 people who have a passport that says "Jerusalem," they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification. This is not a statute that's designed to create some political brouhaha or -- or make a foreign policy statement. It's a statute that, frankly, fits in Alderson Reporting Company Official with what the State Department does in accommodating to individual passport holders. The State Department says if you're a Palestinian or an Arab and you were born in Haifa and you don't like seeing "Israel" on your passport, we'll allow you to eliminate "Israel" from your passport. And all that Congress has said is -­

Justice Kagan: That might be true, Mr. Lewin. I think you would have a better argument if this statute said if you were born in Jerusalem, you can pick anything you want in your passport; you can pick Jerusalem, you can pick Israel, or you can pick Palestine. But the statute in fact doesn't say that. It says you can pick Israel. So, why isn't that a statement of foreign policy as to recognition that Jerusalem is the capital of Israel, as opposed to what you're characterizing it as, which is a freedom of -- you know, a sort of choice provision?

Nathan Lewin: I think that's -- what you said the statute doesn't say, Justice Kagan, is exactly what the statute does say. 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." So, it is an individual choice. Alderson Reporting Company Official

Justice Kagan: Well, you have to be very old to say "Palestine."

Nathan Lewin: Pardon? Pardon?

Justice Ginsburg: Not all that old. (Laughter.)

Nathan Lewin: It's -- I guess it's a reflection on my own seniority that -­ (Laughter.)

Nathan Lewin: -- it's my generation that fits into that. But -- but the fact is exactly; our point is that that's all that the statute does. The statute is a means of permitting self-identification by an American citizen who says: My birth in Jerusalem, indeed in West Jerusalem, which has always been recognized to be part of Israel -- I want to call -- I want my passport to say "Israel."

Chief Justice Roberts: But it's recognizing that principle only with respect to a particular jurisdiction. An American citizen born in Northern Ireland doesn't have this option, because he thinks that's part of Ireland.

Nathan Lewin: No, but an American citizen born in Taiwan apparently does have that option, even the though the United States says we don't recognize Taiwan as an independent country. Alderson Reporting Company Official

Chief Justice Roberts: And your -- and your friend on behalf of the United States says that's because of a State Department judgment that in one situation, it's significant; in the other, it's not.

Nathan Lewin: Well, it's -- no, it's not just because. It's because what happens is there is a recognition in both cases that it is a personal identification choice with regard to what goes on the passport. Sure, in that case, the State Department didn't take it to litigation, although I submit that had they chosen to litigate that case, they would have a stronger position than they have in this case.

Justice Scalia: But a personal identification choice can also have significant foreign policy implications, can it not? Is -- is that an either-or situation? What the State Department is saying is to allow this particular personal identification choice may antagonize some foreign nations that we don't want to antagonize. What if they gave them the choice of saying "Israel, the only democracy in the Middle East"? Okay? That's their choice. They can have that on their passport. Would that be okay?

Nathan Lewin: I have to say that, given this Alderson Reporting Company Official Court's view about Congress's power with regard to (a) passports -- and again, I go back to the fact that in Zemel v. Rusk, in Haig v. Agee, in Kent v. Dulles, in all these passport cases, this Court said we look to see whether what the President does is authorized by Congress, whether implicitly or otherwise. So that, I submit, that with regard to passports, you need the congressional authority, whether it's implicit or express. And with regard to your question, Justice Scalia, yes, Congress could in an exercise of its passport authority say here is what the passport has to say. It would be a foolish statute. But this Court has said, and I think you, Justice Scalia, have said it many times, it's not the Court's job to determine whether Congress is foolish or not. If Congress decides that, look, somebody born in Israel, a passport should say "Israel, the only democracy in the Middle East," Congress can say that. Congress has passport authority. And this -­

Justice Ginsburg: Mr. Lewin, I take it from what you -­

Nathan Lewin: -- and this has to do with the contents of the passport.

Justice Ginsburg: What you've argued is Alderson Reporting Company Official that you're skipping over the question that the D.C. Circuit decided. I take it your view is it's not a political question; so, the Court should resolve the merits.

Nathan Lewin: Our view is it's not a political question because it is like many other questions that affect foreign policy. And the Court said in Baker v. Carr, not every decision that touches on foreign affairs or foreign policy is a political question that can't be determined. It -- it -- arguably, according to the Government, this affects foreign policy. We say it is simply Congress having passed a statute which either is unconstitutional -- we say it is constitutional -­ either is unconstitutional or the Court should simply enforce it, like in the Japan Whaling case. In the Japan Whaling case, this Court rejected the claim that the outcome of a determination by the Court might very well affect foreign relations, and it said it's not a political question. I'd like to reserve the remaining time for rebuttal. Thank you.

Chief Justice Roberts: Thank you, Mr. Lewin. General Verrilli. ORAL ARGUMENT OF DONALD B. VERRILLI, JR., Alderson Reporting Company Official ON BEHALF OF THE RESPONDENT

Donald B. Verrilli Jr.: Mr. Chief Justice, and may it please the Court: The executive has determined that the passports it issues should not identify Israel as the place of birth for persons born in Jerusalem. Petitioner seeks relief under section 214(d) that would countermand that executive judgment. But under the Constitution, that is an exercise of the executive's exclusive recognition power. The Constitution commits that power exclusively to the executive, and neither a court nor the Congress can override that judgment.

Chief Justice Roberts: Your friend -­

Justice Ginsburg: What of all the -­

Chief Justice Roberts: Your friend documented contrary history at some length in his reply brief, where from the beginning at least, as he says, through the McKinley Administration, the two branches acted as if they had co-equal authority.

Donald B. Verrilli Jr.: Mr. Chief Justice, if I might spend a minute or two on that history, because I don't think it shows what my friend suggests that it does. Before getting to the starting point of that story, which I think is the Monroe administration, I Alderson Reporting Company Official would like to point out that in the Washington administration, the President confronted the question with respect to whether to recognize the revolutionary government of France. And President Washington consulted with his cabinet, and, of course, his cabinet included Jefferson and Madison and Hamilton and Jay. And they decided that this was a power that was exclusive to the President to such an extent that they didn't even need to send a message to the Congress that they were going to recognize the new revolutionary government in France. Now, the second fact that I think is critical as a matter of history is that there is not a single piece of legislation that has passed both houses of Congress and come to the President purporting to recognize a foreign nation or a territorial boundary of a foreign nation.

Justice Alito: Has there ever been an instance in which the President has recognized a foreign government over Congress's sustained objection?

Donald B. Verrilli Jr.: I don't -- I can't think of an instance of Congress's sustained objection. I think probably the closest we would come is the revolutionary government of Mexico, which President Wilson first recognized on a de facto basis in 1915 and a de jure Alderson Reporting Company Official basis in 1917. Congress indicated displeasure with that. President Wilson sent his message to Congress saying that this is an exclusive executive function. Congress backed down.

Justice Breyer: What are then the reasons that -- because your friend says that this is an a fortiori case from everything, because all of these words -- every time the word "exclusive power" has appeared in any source -- I think that's what you're saying -- it is meant that the President can act without supporting authority from Congress. But there never has been a case or a suggestion that the President can act where Congress has legislated to the contrary. Now, I think that's the -- that's the argument. And so, what -- I would like to hear what you have to say about that argument.

Donald B. Verrilli Jr.: Yes. Yes, I will answer that question directly.

Justice Breyer: Uh-huh.

Donald B. Verrilli Jr.: It is true that the Court has never before, with respect to the recognition power, confronted the question of whether the President is free to act in a manner different than a congressional command because Congress has never purported to issue a command. That does not mean, however, that my friend is Alderson Reporting Company Official correct that this is a situation in which Congress has the authority to countermand or direct the decision of the President. This is, we submit -- even if one thinks about this as a Youngstown category three case, this is a Youngstown category three case of the kind that Justice Jackson identified in footnote 4, where he cited Myers v. The United States. The kind of case in category three of Youngstown, in which the President's judgment can prevail even over a contrary judgment of Congress, is a case in which the President has exclusive authority.

Justice Breyer: All right. Now -­

Donald B. Verrilli Jr.: And that is this case.

Justice Breyer: But my question is, what leads you to that conclusion?

Donald B. Verrilli Jr.: Well, let me -­

Justice Breyer: What are -- there are very, very few cases I can ever think of where -- where the President -- where the Court has said the President can act contrary to a statute. And so, the point of my question was to get you to talk about -­

Donald B. Verrilli Jr.: Yes.

Justice Breyer: -- why, even though this is a fortiori. Alderson Reporting Company Official

Donald B. Verrilli Jr.: So, I do think, if I could -- I think it would be helpful in answering your question, Justice Breyer, if I could return to the Chief Justice's question about history. Moving beyond that initial recognition by Washington that this is an exclusive power, which I think is quite significant, when we get to the Monroe administration, there is a fight between Clay and Monroe about whether the President has exclusive authority to recognize the new South American republics. Now, a couple of points there. I think the -- what -- the only thing that one could point to as an action by the Congress that even implicates the recognition power is one house of Congress passed an appropriations measure for an ambassador. What the -­ the history treatise, the Goebel treatise that my friend cites, says on page 133, the very page that he cites in his reply brief, is that Clay's effort to contest the President's exclusive authority came to a, quote, "inglorious end," unquote. He then goes on to say -- my friend goes on to say, well, but a year later when President Monroe sought to actually recognize these South American republics, he asked -- he asked the Congress to join him in it. What he asked Congress for was an appropriation Alderson Reporting Company Official for an ambassador. But it was not the sending of an ambassador to the Republic of Colombia that was the recognition. It was when President Monroe received an ambassador from Colombia that constituted the recognition, and that was an exclusive act that he undertook without any consultation with Congress. Now -­

Justice Ginsburg: The two examples that are given in the brief, one of Texas, where Petitioner says there was a case where Congress went first -- Congress recognized and the President acquiesced, and the same thing with Taiwan; it was a statute and the President implemented it. So, if the -- Congress thought it had the authority, the recognition authority, in those two measures, and the President acquiesced.

Donald B. Verrilli Jr.: I'd like to address Texas because I do think that's probably the most significant example that my friend's identified. But even there, I think if one works through the history, we'll see that it's an exclusive executive power. President Jackson, in his first letter in 1836 to the Congress, says essentially: I hear you; you think we should recognize Texas. And then he says: It's an open question as far as I am concerned whether there's exclusive authority or not. It's not been Alderson Reporting Company Official something that the legislature has ever studied, but as a matter of expediency, he says, we don't need to resolve that question, because I want to work with you. He then goes on to caution the Congress to not move too quickly for fear of precipitating war with Mexico, which I think, Justice Breyer, I'll try to return to a functional analysis later, and that's, I think, an important point. What -- then -- but I think what's important, Justice Ginsburg, is that what Congress did next was to pass two appropriations measures, one in the House, one in the Senate. Each of those measures appropriates funds for an emissary to the Republic of Texas, but each includes language that says: At such time that the President determines that it's appropriate to do so. If one looks at the page in the Congressional Globe that my friend cites, one will see that that language was added because, as originally introduced, the appropriations riders were objected to by members of Congress on the ground that they infringed on the President's exclusive recognition authority.

Chief Justice Roberts: Counsel, if I could stop you and just have you address the political question doctrine. Alderson Reporting Company Official

Donald B. Verrilli Jr.: Sure.

Chief Justice Roberts: You say this is exclusively committed to the President, and, therefore, it is a non-justiciable political question. How is that different from saying it's our job to decide cases, it is justiciable, and then you can argue that the answer of that analysis is that it's exclusively committed to the President? I don't understand why labeling it a political question advances the analysis much.

Donald B. Verrilli Jr.: Well, I think we agree, Mr. Chief Justice, that there isn't a very great deal of difference. We acknowledge that in conducting the political question analysis, that it is for the Court to decide whether there's a textual commitment to the executive; it is for the Court to decide the scope. We think that's what Nixon v. United States says; it's what Powell v. McCormack says; and that in answering those questions, we think that the Court will have gone a very long way to determining the question of the -­

Justice Ginsburg: Why not all the way? I mean, if the Court decides that the Constitution commits this authority exclusively to the President, then it's all over. That's the merits of the case: Does the President have this authority? So, the political question label seems to be kind of a -- a subterfuge Alderson Reporting Company Official because if there is a textual commission -- commitment to the President, that's the end of the case.

Donald B. Verrilli Jr.: Well, the -- I do think that with respect to the first Baker v. Carr factor, textual commitment is a factor that the Court has indicated is one that can lead to the conclusion that it's a political question. I do think that the Court has to go through the analysis. And so, at the end of the day, there may not be very much of a difference -- ­

Justice Alito: Well, doesn't it depend on what the question is? In order to decide whether it's a political question, you have to identify the question. Now, if the question is whether the President has exclusive authority with respect to the formal recognition of a foreign country, that might be one thing. But what if the question is whether the President has exclusive jurisdiction with respect -- has plenary authority, unreviewable authority, with respect to anything that the President thinks has a bearing on the question of recognition. Now, if that's the question, is that committed exclusively to the President?

Donald B. Verrilli Jr.: No, Justice Alito, we don't -- we think Powell v. McCormack and Nixon say Alderson Reporting Company Official that the question of -- not just the question of commitment, but also the question of scope, are questions for the Court to decide. And we do think, with respect to the question here, that even though it's for the Court to decide, it's for the Court to decide with a very significant measure of deference, because when -- the decision by the executive with respect to how it's going to handle the status of Jerusalem in passports is a very sensitive and delicate matter. This position was arrived at after very careful thought, and it is enforced very carefully. And I think from that should come the lesson that this -- and the reason is because the executive believes that the statement on the passport has to be understood as a manifestation of the President's exercise of the recognition power.

Justice Kagan: Well, suppose this, General Verrilli: Suppose that this statute -- there was the section that's there now, and then there was another section, and the section said: The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel's sovereignty over Jerusalem. Would that be constitutional?

Donald B. Verrilli Jr.: I -- I don't think it would change the analysis, Justice Kagan. I -- I think Alderson Reporting Company Official -- of course, that is not this statute, which has a title which says "United States Policy With Respect to Jerusalem as the Capital of Israel." But -­

Justice Kagan: No, my statute has a title which says "Identification of Persons Born in Jerusalem."

Donald B. Verrilli Jr.: I still -- I still think that would be within the scope of the executive's power to decide because the content of the passport, insofar as the Executive believes that it constitutes an expression of -- of an incident of recognition, is a judgment that the executive makes. Now, the Court can review that, but the Court's review of it should be done with a significant measure of deference as the Court suggested in Regan v. Wald. Now -­

Justice Sotomayor: General, what is -­

Justice Kennedy: That seems to me different than the rationale of the D.C. Circuit. It seems to me you're not defending the rationale of the D.C. Circuit -­

Donald B. Verrilli Jr.: No -­

Justice Kennedy: -- that there's no jurisdiction.

Donald B. Verrilli Jr.: No, we -­ Alderson Reporting Company Official

Justice Kennedy: And, you know, it's -­ it's always awkward for us to tell counsel what's in their best interest, but -­ (Laughter.)

Justice Kennedy: But it does -- it does seem to me that your position would be much stronger if you said there is jurisdiction, and the President wins.

Donald B. Verrilli Jr.: Well, we think -- we do think that if there is jurisdiction, the President wins. But we do think that the D.C. Circuit acted appropriately in finding that -­

Justice Kennedy: Because if this -- if this rationale remains the law and is the law, then you have the specter of constant legislative determinations that are not clearly -- not clearly invalid. And it seems to me that's, again with all due respect, not in the best interest of the ultimate argument you're making.

Donald B. Verrilli Jr.: Well, we appreciate that, Justice Kennedy. We do think that in resolving a political question -- in conducting a political question analysis, the questions that the Court would need to decide under Nixon and Powell would go a very long way to clarifying that problem.

Chief Justice Roberts: What if -­

Justice Sotomayor: General -­ Alderson Reporting Company Official

Chief Justice Roberts: What if Congress's statute said what you must put on the passport, if requested, is "Israel," parentheses, ("Disputed"), close parentheses? Which would seem to take care of your objection that people are going to look at this and draw a false conclusion.

Donald B. Verrilli Jr.: I don't think that changes the analysis, Mr. Chief Justice, because I think that that -- the -- to the -- because it would -- that would be again Congress seeking to direct a judgment of the -­

Chief Justice Roberts: It is the position of the administration, isn't it, that the status of Jerusalem is disputed?

Donald B. Verrilli Jr.: That's correct, Mr. Chief Justice, but it -- what the United States says about that in official communications -- and remember, a passport is not a communication by the passport holder. It's an official United States document that communicates the position of the United States. That's -­

Chief Justice Roberts: So, what if Congress says, in the place that you have it, this person has the choice of whether or not to put "Jerusalem" or "Israel"? This doesn't affect whether the United States recognizes Jerusalem as part of Israel or not; it's just his Alderson Reporting Company Official choice. Same problem?

Donald B. Verrilli Jr.: Same problem, Mr. Chief Justice. This is -­

Chief Justice Roberts: Really?

Donald B. Verrilli Jr.: Yes.

Chief Justice Roberts: I thought your argument was that someone's going to look at that and say that -- that offends me, that you're calling this part of Israel. That was the foreign policy significance. And I tried to give you a hypothetical in which nobody could reasonably draw that conclusion, and you say still, same thing.

Donald B. Verrilli Jr.: I do think that this is an area in which the executive's got to make the judgment because it's of paramount importance that the nation speak with one voice.

Justice Ginsburg: Then -- General Verrilli, then you are taking the position that this is not a shared authority; it's an exclusive authority, that there is no role for Congress. Am I right? Or is there some role in recognition for -- for Congress?

Donald B. Verrilli Jr.: Our position, Justice Ginsburg, is that the recognition power is exclusive to the President.

Justice Scalia: What if -- what if the Alderson Reporting Company Official recognition of a breakaway province of a foreign country by the United States will clearly provoke a war with that country. Would Congress have the power to decree that the President shall not recognize that breakaway province, knowing -- knowing that if he does recognize it, that country will declare war on the United States?

Donald B. Verrilli Jr.: I think, Justice Scalia, that's a situation in which the President would exercise that recognition power very carefully -­

Justice Scalia: No, no. We have a foolish President. (Laughter.)

Justice Scalia: Contrary to our entire history, we have a -­ (Laughter.)

Donald B. Verrilli Jr.: I think -- although I don't -- I just don't think that in a situation like that, the President would exercise a recognition power, but if -- but if the President did, it's the President's judgment to make. And I -- Justice Breyer, if I could get back to your question, in addition to the -­

Justice Scalia: Please stay on this.

Donald B. Verrilli Jr.: I'm sorry.

Justice Scalia: I am -- I am willing -­ Alderson Reporting Company Official (Laughter.)

Justice Scalia: Our cases say repeatedly that the President is the sole instrument of the United States for the conduct of foreign policy, but to be the sole instrument and to determine the foreign policy are two quite different things. To say he's the sole instrument simply means that congressmen traveling abroad or globetrotting ex-presidents -- nobody except the President of the United States pronounces the foreign policy. But it doesn't necessarily mean that the President determines everything in foreign policy. He's the instrument, but there is certainly room in those many cases for saying that Congress can say what the -- what it's -- what the country's instrument is supposed to do.

Donald B. Verrilli Jr.: I -- I think with respect to the question of recognition, Justice Scalia, that it is a power that rests with the executive. And I think in addition to the history, in that we do -- now in 220-plus years in our Constitution, do not have a single example of Congress actually exercising the power, and I think in addition to the history, there are very good functional reasons why that is so. And I think, Justice Breyer -- in answering your earlier question, I think those are significant. Alderson Reporting Company Official The exercise of the recognition power depends, we think, on three things that make it clear that it needs to be exclusive. The first is timing; the second is expertise; and the third is a need for secrecy. Timing -­

Justice Kennedy: I didn't hear the third.

Donald B. Verrilli Jr.: The need for secrecy. Timing is -- I think the Israel example shows, is of critical importance. But it's not just speed. Of course, Congress can't act with the dispatch needed in a situation like the recognition of Israel. But the -- but apart from that, recognition -- a recognition that occurs too soon could send events in a direction that could be very disadvantageous to our foreign policy. A recognition that comes too late could -- could squander an important opportunity in the national interest in the foreign policy realm.

Justice Kagan: General Verrilli, is the textual basis for your argument that the President has exclusive power here? Is it the Receipt of Ambassadors Clause alone, or is it something else? Because I was frankly a little bit surprised that your brief put so much weight on that Receipt of Ambassadors Clause, which arguably was meant to give the President a purely ministerial function and so little weight on any other Alderson Reporting Company Official power that the President has.

Donald B. Verrilli Jr.: So -- here's our position on that, Justice Kagan: We do think that the Reception Clause is the source of the recognition power. Hamilton identified it as the source of the recognition power in the Washington administration. I think it's now understood that it's hornbook law that that's the textual source, but to the extent that -­

Justice Scalia: Well, it's the best there is.

Donald B. Verrilli Jr.: But -­

Justice Scalia: I mean, if you've got to cast about for something, I suppose -- I don't know what else you'd -- you'd land upon.

Donald B. Verrilli Jr.: It is there.

Justice Scalia: Well, it is there. It doesn't say a whole lot.

Donald B. Verrilli Jr.: And in addition -- I would say in addition, to the extent there is a question, we do think, as I think we indicated in our brief, that -­ that one can see this power as part of what the Court in Garamendi described as the vast share of responsibility that the Constitution assigns to the executive. Now, we don't think all of that shared responsibility is exclusive to the executive, but we think this Alderson Reporting Company Official responsibility is exclusive.

Justice Kagan: So, if that provision were not in the Constitution, would you be making the same argument you are now?

Donald B. Verrilli Jr.: If the Reception Clause were not in the Constitution, but we had the same history that we have now and the same functional considerations about the need for it being in the control of the executive, yes, we would.

Justice Alito: There are many things that Congress could do to frustrate the President's decision to recognize another country. Now, would you say all of those are unconstitutional? They all infringe the President's exclusive recognition authority? Suppose the President decides to recognize a country, and Congress refuses to appropriate any money for an embassy there or refuses to confirm any U.S. ambassador to that country. Those presumably would not be unconstitutional, would they?

Donald B. Verrilli Jr.: The -- I think that there would be a difference between -- I -- I think that -­ that Congress has authority over appropriations. Congress has authority to appoint ambassadors. It's entitled to exercise that authority, and it's entitled to exercise that authority even if it's in tension with Alderson Reporting Company Official the President's recognition decision. It is the position of the executive, though, that there could be circumstances in which Congress could try to exercise its appropriations authority in a way that would preclude the executive from exercising its -- its recognition power, and that -- the executive would in some circumstances believe that it had the authority to move ahead despite those actions by Congress. But, of course, this is not a situation in which Congress has passed a sense of the Congress resolution about what it thinks. It's not a situation in which Congress has exercised attaching conditions to its spending power about what private parties do. This is an effort by Congress to regulate the content of a passport, which, as the Court recognized in Haig v. Agee, is a core instrument of diplomatic communication.

Justice Alito: Do you think that's an exclusive power, to -- to determine of the contents of passports? Hasn't Congress exercised that authority -­

Donald B. Verrilli Jr.: We -­

Justice Alito: -- for a long time.

Donald B. Verrilli Jr.: We don't think that the entire content of passports is an exclusive power. I would -- and I'll explain, Justice Alito, where we think Alderson Reporting Company Official the line is. But before doing so, I do want to push back a little bit on the notion that Congress has for a long time exercised authority over the content of passports. The first Passport Act was in 1856. What this Court said in Haig v. Agee was that the enactment of that statute merely confirmed a power that everyone understood to be inherent in the executive. That statute did not purport to regulate the content of passports. It, in fact, said that passports shall be issued under such rules as the President shall proscribe. And -- and in Haig, that was that language, I think, that led the Court to conclude that this was a confirmation of the executive's authority and an action in aid of that authority. Now -­

Justice Breyer: I just want -- I don't want the time to elapse. You can finish that if you'd like. I'd just like somewhere a few words about the political question, which you don't believe in. From reading your brief, I would say you don't believe in it much. And my question on the political question for either of you is this: that -- that this is an area of foreign affairs. It's an area of -- of, you know, recognition. We know that. Never has this Court or anyone else held that Congress can go ahead in this area over a law passed by Alderson Reporting Company Official Congress. But it is passports, which both regulate. And our real problem is these are words that are officially said and they are detailed words, and those words may really disrupt coherent foreign policy. Viewed that way, there are billions of words that might have the same effect. And do we know that these words will and some other words won't? No, judges don't know that. And, therefore, when you get into this area, the best thing to do is avoid multifarious pronouncements by various departments of government on one question; do not respect the views of other branches; and, judges, stay out of it. Let them work it out by themselves. I just want a word from either you and really Mr. Lewin on -- on that.

Donald B. Verrilli Jr.: Yes. Well, we do think -­ that's what -- we think that the appropriate inquiry for political question purposes is into the relief that the Petitioner is seeking and if the relief the Petitioner is seeking would invade the kinds of judgments that the Constitution commits exclusively to the executive. And the reason it commits these kinds of judgments exclusively to the executive is because this is a situation in which multifarious voices are inimical to Alderson Reporting Company Official the national interest.

Justice Ginsburg: But that is still -­ that's a merits determination. The whole question is, who has the authority? And whatever label you put on it, if you decide that the President has, as you just said, the exclusive authority, that's the end of the matter. It -- it's not leaving it -- it is not leaving it, as Justice Breyer said, to the political branches to fight it out between them. It is saying the President has the exclusive authority.

Donald B. Verrilli Jr.: Well, I -- I think in -­ in -- let me try to put it this way, Justice Ginsburg: In the absence of section 214, I think it would be clear from Pink and Belmont that this -- that the judgment on recognition is exclusively committed to the executive, and it would be a political question, if a party came in and said I want my passport to say something different about Jerusalem than it says, that -­

Justice Sotomayor: General, the tension that I see here, and I think it's what Justice Breyer is getting at, is the label's important, because if we call this a political question and don't address the merits, the outcome is that the President is saying that he's entitled to ignore the Congress. I don't know what kind of message that sends, but it's a little unsettling Alderson Reporting Company Official that a Court charged with enforcing the laws passed by Congress are basically saying we're not going to determine whether this law is constitutional or unconstitutional. That's what your definition of political question is becoming. And where does that stop?

Donald B. Verrilli Jr.: Well, I -­

Justice Sotomayor: In what situations? Only in foreign policy do we decide not to -­

Donald B. Verrilli Jr.: I think, Justice Sotomayor, it's actually quite narrow, and the problem isn't a significant one in the case of textual commitment, because the Court does -- in reaching the conclusion, as the D.C. Circuit did, that it's a political question, the Court does have to decide whether there is a textual commitment to the executive here. So, the Court would resolve that question. The Court would resolve the question of whether the conduct at issue here is within the scope of that textual commitment. So, the Court would issue those rulings.

Chief Justice Roberts: And what you told -­

Justice Sotomayor: But that's not what the D.C. Circuit did.

Chief Justice Roberts: You told -- you told Justice Kagan that it didn't -- your position didn't Alderson Reporting Company Official depend upon a textual commitment, that your position would be the same if the Receive Ambassadors Clause were not in the Constitution.

Donald B. Verrilli Jr.: But I -- I didn't mean to suggest it wouldn't be a textual commitment. It would be -- it would be a commitment that one would read as the historical gloss on the vesting power, which is what Garamendi said.

Chief Justice Roberts: That sounds to me like not in the text.

Donald B. Verrilli Jr.: Well, I think it's the historical gloss on the vesting power. It is -- it functions as the equivalent of the specific textual commitment. Of course, we do have the specific textual commitment here, the -­

Justice Scalia: This textual commitment applies when somebody comes to the Court and asks for the Court to make the decision. If the plaintiff here had come in and -- without a congressional statute to rely upon, and had said, it is -- it is wrong for the State Department not to let me say "Israel" on my passport, then we would say, you know, textually committed to the executive. But this is a different situation where you have a -- a dispute between the two branches, and where Alderson Reporting Company Official that happens, I find it hard to say, well, you know, we can't get into it because why? Because it's textually committed to one of the branches? It seems to me we have to resolve that question.

Donald B. Verrilli Jr.: Well, as I said earlier or I tried to say, we think that the -- the analysis under the political question doctrine goes a very long way towards answering that question, Justice Scalia. We do think that this could be seen as a case like Gilligan, in which looking at the relief that the petitioner is seeking, the plaintiff is seeking, leads the Court to conclude that this -- that -- that entertaining the claim would embroil the Court in decisions that are supposed to be made by another branch; and that, in fact, I think you can understand section 214(d) as precisely that, an effort to try to draw the Court into this dispute between Congress and the executive over whether section -- over whether Jerusalem should be recognized as part of Israel.

Chief Justice Roberts: I will give you a couple more minutes. If my colleagues have any questions?

Justice Scalia: Yes, I -- I wanted to follow up on that. Does -- does that mean you're content to have this Court not say whether it's the Alderson Reporting Company Official exclusive executive power or -- or there's some congressional participation? I mean, if we just abstain, if we just say it's none of our business, it's none of our business; let you two guys fight it out -­ that's not what you're asking us to do, is it?

Donald B. Verrilli Jr.: That's correct, Justice Scalia. It's not what we're asking -­

Justice Scalia: You're asking us to decide the question that it is exclusively the presidential power.

Donald B. Verrilli Jr.: Yes. That is correct.

Justice Scalia: That doesn't sound to me like -- you know, like abstaining because it's a political question. It seems to me like deciding the case.

Chief Justice Roberts: Do you want to answer?

Donald B. Verrilli Jr.: We -- we do think that the -- whether the Court is looking at it as a political question or whether the Court is looking at it as a judgment of the merits, the issue is textual commitment. This is -- there is textual commitment. This is a situation in which the country has to speak with one voice, and the executive has determined what the country should say. Alderson Reporting Company Official Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Lewin, we'll give you 6 minutes. REBUTTAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF THE PETITIONER

Nathan Lewin: Thank you, Mr. Chief Justice. Let me begin my rebuttal by echoing really what Justice Alito said during my colleague's argument. The question is whether anything that the President thinks bears on recognition, it forecloses this Court or any court from making that determination? This is not in our view a recognition case. This is a passport case. The question is, what goes on the passport, and may somebody self-identify? This is -- again, if one looks at the statute, if one even looks at the Foreign Affairs Manual, a passport is not today considered a diplomatic statement; it's an identification of a person in order to enable him to travel abroad. Now, again, let me also echo what the Chief Justice and Justice Kagan asked during my colleague's argument. If in fact the statute had said we don't say Jerusalem is part of Israel, but you can identify yourself as being in Israel, my -- we submit that result can very easily be achieved and was achieved in the case Alderson Reporting Company Official of Taiwan by a public statement by the executive. Congress -- this law can be enacted. People who were born in Jerusalem can have their passport say either "Jerusalem" or "Israel." That's their choice. Congress hasn't said it has to say "Israel." And then the Department of State can issue, as it did in the case of Taiwan, a public statement saying this is not official American policy. Nobody's asking this Court to decide what is official American policy. Nobody is asking the Court to decide what, as Justice Scalia said, would happen if there were no congressional statute. In that case, it would be a political question. If my client had decided he wanted to have his passport say "Israel" and he had no congressional statute, and we brought the case to a court, the court could say, no, you're asking us to decide what the President should decide, what the Department of State should decide. But other than that, Congress has enacted the law. The -- the fact is that with regard to this legislation, it is a statute which determines personal choice with regard to a passport. The case can be a vehicle -- this case can be a vehicle for an authoritative clarification of the roles of Congress and Alderson Reporting Company Official the President in conducting the nation's foreign affairs. If so, then we submit Justice Jackson's statement, which acknowledges that Congress has the final word in the third category, is one that should control. But there are narrower grounds for enforcing section 214(d) that do not implicate separation of powers issues. It's a passport law. It's within Congress's constitutional authority on the cases that have recognized that the President may not deny or restrict passports without the express or implied approval of Congress. That doesn't require the recognition or involve the recognition of foreign sovereigns. And the State Department's justification for a policy that Congress has disapproved does not withstand scrutiny. The Court merely has to look at the record in this case in which the State Department has said, look, we're concerned that there may be a misperception of what this means. A misperception. And it's extraordinary that on the basis of the fact that there's an alleged misperception, American citizens who have been authorized by Congress to say -­ identify themselves on their passports as being born in Israel will now find that statute nullified.

Justice Sotomayor: Could you tell me -­ Alderson Reporting Company Official let's assume that a dozen nations said this designation on the passport is -- we view as an act of war; if the United States is going to do this, we're going to view it as an act of war. Would that then permit the President to ignore Congress's statute -­

Nathan Lewin: I think Congress has to weigh that; and if Congress determines that in any event this is what the passport should say, then that is Congress -­

Justice Sotomayor: So, it's not the misperception that's at issue.

Nathan Lewin: Well, in this case -­

Justice Sotomayor: That misperception has nothing to do with your argument.

Nathan Lewin: I -- I don't think that's true because -­

Justice Sotomayor: You're going back to Justice Scalia's point, which is what you're saying is Congress dictates foreign policy in the end.

Nathan Lewin: In the end, if Congress determines that what the President has said in this context is wrong, yes. We live in a system under which Congress passes the law, and the President has the duty -- and I think Justice Scalia has said it, has the duty to be the sole instrument of foreign policy. The Alderson Reporting Company Official President speaks for the foreign policy that -- when Congress authorizes him to do it, he may formulate it. When Congress does not authorize him to do it, he may formulate it. But when Congress disapproves of what he does, then under Justice Jackson's test in the Steel Seizure case, Congress prevails. The fact that there is dictum in cases -­ particularly Curtiss-Wright, which has not come up in the course of the argument, but Justice Sutherland's opinion in the Curtiss-Wright case in which he spoke broadly of the President as being the sole organ of foreign policy -- one has to say that the Harvard professor Thomas Reed Powell, who used to tell his students that just because Mr. -- Justice Sutherland writes clearly, you must not suppose that he thinks clearly. (Laughter.)

Nathan Lewin: And we submit that is really what it is all about.

Justice Kennedy: I have just -- I have just one question on -- on Washington's recognition of revolutionary France. You cite in the reply brief the fact that the administration was simply following what it deemed to be a dictate of international law. Do you want us to infer from that that he was not exercising a Alderson Reporting Company Official real discretion there?

Nathan Lewin: Correct. The -- historians who've studied that have determined that he was just following Mr. Vattel, who said you had have to recognize any country that has de facto control; and, therefore, since the French revolutionists were in de facto control of the French Government, Washington had no choice. He was not exercising any kind of discretion.

Chief Justice Roberts: Thank you, counsel.

Nathan Lewin: Thank you.

Chief Justice Roberts: The case is submitted. 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