Jonathan Tobin makes a valuable point about the Zivotofsky case: the law giving Americans born in Jerusalem the right, if they want, to have the State Department put “Israel” on their passports as their place of birth reflects the fact the American people, through their elected representatives, have long recognized Jerusalem as the capital of Israel. The idea that American foreign policy would be adversely affected by letting Zivotofsky put “Israel” on his own passport is not a cogent thought.
Chief Justice Roberts’ masterful opinion (which attracted eight votes) provides a way out of the corner into which the administration has painted itself. Because the case will now return to the lower courts for further proceedings, the administration has an opportunity to reflect further on its legal strategy. There is a way in which everyone could win without further litigation – assuming President Obama is willing to learn from what President Clinton did in a similar situation.