John Roberts Is No Fool

By James Taranto

"The White House . . . has quietly altered its website to remove the references to Jerusalem being in 'Israel,' " the New York Sun reports. It sounds like another make-work Keynesian stimulus: dig a hole, fill it up. But the Obama administration forgot the first rule of holes: When you're in one, stop digging. (How's that for a passably bad Thomas Friedman imitation?) The website editing is an attempt to put one over on the Supreme Court, and we doubt it will succeed.

Currently pending before the high court is the case of Zivotofsky v. Clinton. Appellant Menachem Zivotofsky, 9, is a U.S. citizen who was born in Jerusalem. As a Sun report from last week explained, two months after Menachem's birth, his parents went to the U.S. Embassy in Tel Aviv to apply for a passport for the boy. They asked that his country of birth be listed as Israel, but "the embassy refused, citing longstanding State Department policy that such passports list only 'Jerusalem,' with no country added." (This policy applies only to the capital, not other Israeli cities.)

In 2002 Congress enacted legislation to reverse this policy, directing the State Department to list the country of origin as Israel on passports (as well as birth and nationality certificates) if a Jerusalem-born applicant requests it. The provision was part of a larger spending bill, which President Bush signed into law, but he issued one of those "signing statements" that were anathema to liberals before Barack Obama fundamentally transformed America.

The Bush administration's position, which is now the Obama administration's position, is that the provision is an unconstitutional infringement of the president's "power to recognize foreign sovereigns." Part of Jerusalem was occupied by Jordan until 1967, and the State Department views the city's sovereignty as disputed.

In 2009 the U.S. Circuit Court of Appeals for the District of Columbia declined to rule on the question, holding that the case posed a nonjusticiable political dispute. The Supreme Court's having agreed to take the case suggests that the justices disagree. There wouldn't be much point hearing an appeal only to affirm a lower court's ruling that the courts have no business deciding the matter.

Last week the Sun reported on the references the White House has now scrubbed from its website: "On the official website are a series of pictures from Vice President Biden's trip last year to Israel, where he met in Jerusalem with Prime Minister Netanyahu and other Israelis. In cutlines associated with the pictures the vice president is described as being in 'Jerusalem, Israel.' "

As the Sun acknowledges, "the cutlines on the White House photos were themselves not formal legal recognition of sovereignty." It is only symbolic. But so too, the Zivotofskys argue, is the change in policy dictated by the 2002 law. If the White House website can acknowledge that Jerusalem is in Israel without undermining the administration's diplomatic position, why can't Congress, in a law governing only the administration of vital documents, compel the State Department to do the same?

The White House changed its website in an attempt to shore up its legal position by depriving the Zivotofskys of this argument. It is at least mildly deceptive, but it will succeed only if it escapes the notice of the Supreme Court.

But if the guys at the White House thought they could get away with this, they didn't read footnote 10 of Chief Justice John Roberts's opinion for the court in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (citations and extraneous quotation marks omitted): "Prior to oral argument in this case, the Citizens Clean Elections Commission's Web site stated that 'The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to level the playing field when it comes to running for office.' The Web site now says that 'The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to restore citizen participation and confidence in our political system.' "

The court had previously held that preventing corruption was a "compelling state interest" that justified some restrictions on political speech. But as the chief justice noted, "we have repeatedly rejected the argument that the government has a compelling state interest in 'leveling the playing field' that can justify undue burdens on political speech." The commission, a state government agency, was altering its public statements to bring them into line with its legal defense--precisely what the White House is now doing.

In dissent, Justice Elena Kagan rejected what she inferred to be the majority's claim "that a statement appearing on a government website in 2011 (written by who-knows-whom?) reveals what hundreds of thousands of Arizona's voters sought to do in 1998 when they enacted the Clean Elections Act by referendum." She added: "Just to state that proposition is to know it is wrong." Maybe so, but the Obama administration's position in Zivotofsky was not adopted by plebiscite, so that even if you accept Kagan's rebuttal in the Arizona case, it would not apply here.

The White House website's photo captions may not prove decisive to the outcome of Zivotofsky v. Clinton. But if Obama's men thought that pulling a stunt like this on the Web-savvy Roberts court would strengthen their case, they really are a bunch of amateurs.