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The Lawfare Podcast

Zivotofsky v. Kerry: The Jerusalem Passport Case

The Lawfare Podcast

The Lawfare Institute

International Law, Law, Government, Foreign Policy, News, Politics, Rule Of Law, International Relations, Current Events, Military, Constitutional Law, Intelligence, National Security, History, Terrorism, Diplomacy

4.76.4K Ratings

🗓️ 12 June 2015

⏱️ 60 minutes

🧾️ Download transcript

Summary

On this week’s Lawfare Podcast, Lawfare Founding Editor Jack Goldsmith and former Deputy Assistant Attorney General Marty Lederman sat down to discuss the Supreme Court’s sweeping ruling in Zivotofsky v. Kerry. In its opinion, the Court ruled that the President has the exclusive power to recognize foreign sovereigns, and he therefore can disregard a Congressional statute requiring him to designate “Israel” on the passports of U.S. citizens born in Jerusalem. What are the consequences of this decision? What does this now mean for the method of determining the President’s exclusive powers? And could the Court have reached a more limited ruling? Goldsmith and Lederman tackle all this and more. 

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Transcript

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0:00.0

The following podcast contains advertising.

0:04.0

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0:08.0

become a material supporter of LawFair at patreon.com slash law fair.

0:14.0

That's patreon.com slash law fair.

0:18.0

Also, check out LawFair's other podcast offerings,

0:22.0

rational security, chatter, law fair no bull, and the aftermath.

0:30.0

Moving away from the question of recognition,

0:33.0

and towards simply a sort of a simpler principle

0:37.0

that wasn't recognition specific, which is that Congress,

0:41.0

whatever else Congress may do, maybe Congress can counter-man what the president is saying.

0:46.0

But Congress can't force the executive itself in its diplomatic relations with others overseas.

0:52.0

To speak out of both sides of its mouth, to contradict itself.

0:56.0

It appears over a dozen times in the solicitor general's oral argument.

1:00.0

And at least six times in his opinion,

1:03.0

Justice Kenley says that the real problem here, as you just suggested,

1:07.0

was that it's almost that Congress didn't go full in a whole hog.

1:11.0

Didn't go to the full loaf and change the United States view.

1:14.0

But instead was insisting that the president,

1:17.0

even though our view is that we don't have a view on Jerusalem sovereignty,

1:21.0

we're going to force the executive in interactions with those overseas

1:25.0

to say that we do, and that that contradiction in the executive voice

1:29.0

is really constitutional evil to be avoided here.

...

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