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The High Court And The Four Questions

The High Court And The Four Questions

We may be less than two weeks away from Passover, but the folks at the Supreme Court can’t seem to wait. This week all eyes are on The Four Questions before them—that is, the four main issues they’ll have to decide concerning the legality of the health care law. In case you haven’t been following, the Court has broken down the challenges to four main issues, with the most important one—the legality of the individual mandate, the part of the law that requires all Americans to have health insurance, or pay a fine—being debated today.

With evocations of charotzet and lamb shanks in the digital air, I couldn’t help but notice the other major Jewish issue before the Court this week. That’s Zivotofsky v. Clinton, the case about which branch of government—the Congress or the President—has the authority to determine whether “Jerusalem” can be listed as the capital of Israel on U.S. passports. The decision was decided Monday afternoon, and the Court gave a ruling that may give us a glimpse into the judges’ decision about the bigger health care case.

Basically, the Court ruled 8-1 in the Zivotofsky case that, on the one hand, federal courts can wade into disputes between the Congress and the President, but on the other, the Supreme Court itself refused to issue a final decision on the particular case at hand—whether U.S. citizens born in Jerusalem should be allowed to have Israel listed as their country of birth. The State Department has, for diplomatic reasons, forever refused to list Jerusalem as the capital of Israel on official U.S. documents, fearing it might inflame Arab opinion and perhaps put Jerusalem-born U.S. citizens at risk when traveling in Muslim countries.

But in 2002, Congress tried to break that decades-long practice. They passed a law saying that the State Department, which officially issues U.S. passports, should include Jerusalem as the capital of Israel. President Bush, however, refused to enforce the law, even though he agreed with it in spirit and signed it into law. Obama has continued the Bush policy, but it has only now become news as the Zivotofsky case made it to the Supreme Court.

The issue the Court actually decided on was quite narrow: whether federal courts have the authority to rule in disputes between Congress and the executive branch. In short, the Court ruled that federal courts can, but ducked the issue when it came to giving a conclusive opinion on the specific case at hand—whether Jerusalem should be considered the capital of Israel on passports.

So what might the Court’s ruling in Zivotofsky tell us about its future ruling on the health care law?

Here’s only a guess: the Court clearly likes to gain attention by grabbing onto to explosive issues, but it’s actually pretty timid when it comes to answering the issue definitively. In Zivotofsky, the justices essentially said: yes, federal courts are big boys and can referee controversial disputes between the two other branches of government—but, uh, sorry!, we Big Nine won’t do it ourselves. We’ll leave it to the lower federal courts decide—thus leaving the issue as unresolved as ever.

Here’s hoping a similar mix of bombast and pusillanimity doesn’t corrupt the more momentous Four Questions before them.

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