Eugene Kontorovich has further thoughts on Zivotofsky v. Kerry (responding to the posts noted here):
Zivotofsky is not about recognition (I)
Zivotofsky is not about recognition (II)
I agree that Zivotofsky is not about recognition (and therefore that the challenged statute does not infringe the President's exclusive recognition power, even if he has one). But there's this:
A major feature of the statute makes it exceedingly difficult to characterize it as official speech about the status of Jerusalem. The law allows citizens born in Jerusalem to choose whether to put “Jerusalem” or “Israel” on their passports. Thus it is if anything the bearer’s speech, and Congress is simply allowing the passport to be a “public forum” for citizens, like affinity license plates [on a] car.
Again, I agree … but how does this fit into any power of Congress? Putting it this way seems to me to show that it's not a commerce power being exercised here, or any other power that might in some circumstances allow some regulation of passports. Congress isn't empowered to offer private citizens a forum to speak on official documents such as a passport, and permitting such speech does not serve any of the powers Congress actually has.
UPDATE: Argument transcript here (via How Appealing); argument analysis from Lyle Denniston at SCOTUSblog here.
Posted at 6:52 AM