Supreme Court Asked To Decide If “Born In Jerusalem” Means “Born In Israel”

The Supreme Court is being asked to decided if Congress can overrule a foreign policy position the U.S. has held since 1948.

In its upcoming October Term, the Supreme Court is being asked to decide if an American citizen who was born in Jerusalem can  have Israel put on their passport as their country of birth:

WASHINGTON — Menachem Zivotofsky was born in Jerusalem. But was he born in Israel?

Congress says yes. In 2002, it directed the State Department to “record the place of birth as Israel” in passports of American children born in Jerusalem if their parents ask.

President George W. Bush signed that bill about three weeks before Menachem was born. But Mr. Bush also said he would not obey it.

(Remember the controversy over Mr. Bush’s flurry of signing statements, in which he expressed reservations and disagreements with acts of Congress even as he signed them into law? This was an example of one.)

The 2002 law, Mr. Bush said, “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”

The status of Jerusalem has long divided not only Israelis and Arabs but also Congress and presidents of both parties. Over Congressional objections, the United States maintains its embassy in Tel Aviv. In his 2002 signing statement, Mr. Bush said, “U.S. policy regarding Jerusalem has not changed.”

This fall, not long after Menachem turns 9, the Supreme Court will hear arguments in his case, which seeks to force the executive branch to follow the 2002 law. The case weaves together generations of conflict in the Middle East, the dueling roles of Congress and the president in the conduct of foreign affairs and the combustible topic of presidential signing statements.

Nathan Lewin, a lawyer for Menachem and his parents, said the point pressed in the lawsuit was a modest one shared by many people. “This client is representative of a large group of American citizens born in Jerusalem who are proud of the fact that they were born in Israel,” he said, “and they want their passports to reflect that fact.”

A federal appeals court in Washington ruled against Menachem, saying the conflict between the branches was the sort of political question not fit for judicial resolution. Judge Harry T. Edwards, in a statement issued when the full appeals court refused to rehear the case, said the ruling “calls into question the role of a federal court in our system of justice.”

Judge Edwards said he would have reached and resolved the conflict between the branches rather than ducking it. He went on to say that he would have ruled for the executive branch.

The Obama administration urged the Supreme Court not to hear an appeal. The ruling below was correct, it said, and the dispute among the appeals court judges did not affect the outcome.

The justices instead not only agreed to hear the case, M.B.Z. v. Clinton, No. 10-699, but also directed the two sides to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns.”

Given the extent to which Federal Courts have typically demurred in ruling on issues involving foreign affairs and disputes between the Executive and Legislature Branches, it’s somewhat surprising that the Supreme Court has apparently decided to take the case on directly on the merits of the argument. Nonetheless, one would expect the Court to exercise its traditional deference toward Presidential authority over foreign affairs here and accept the State Department’s argument that the law passed by Congress represented an unconstitutional intrusion into the Executive Branches authority, as well as endangering the position that the United States has traditionally taken regarding the status of Jerusalem.

The issue isn’t quite as clear as the Administration makes it, however. Temple University Law Professor Robert Reinstein talks about the case in an article in the current issue of the University of Richmond Law Review (PDF), and argues that Presidential authority in this area is far from clear. Reinstein reviews the four main arguments for the theory that the President has the exclusive authority to recognize foreign nations and finds each of them lacking. While his argument is far too long (62 pages) and detailed to summarize here, this closing paragraph comes fairly close:

There is no evidence in the existing records that the founding generation foresaw a situation in which the United States would have to decide whether to recognize a new state or government. This would indeed occur, and fairly quickly, in the revolutionary overthrow of monarchical rule in France and the resulting cataclysm that engulfed Europe for a generation.398 These events would put the United States in the position of having to make decisions on recognition and diplomatic relations that, if done mistakenly, could have involved the country in war. But these events were not foreseen, certainly not as happening in the early stages of the Republic’s history. Unless we are to attribute clairvoyance to the founders, it is understandable that they would concentrate on the clear and pressing issues of creating a new government, as opposed to theoretical questions of power that could be expected to arise, if at all, in a distant future. It is quite possible that the recognition power was not discussed in the drafting and ratification of the Constitution because it was not then considered particularly relevant to the new Republic.

(…)

A void was left in the Constitution, and it was addressed in the first instance by the Washington administration. The recognition of the revolutionary government of France and reception of its minister were part of a larger package of actions (also including the interpretation of the treaties with France, the issuance of the Neutrality Proclamation and Rules on Neutrality, and the control over diplomacy and diplomats) by which our first President exer-cised control over foreign policy in a crisis that threatened to draw the nation into European wars.

One could argue, it seems to me, that the power to recognize governments would be covered by the President’s plenary authority over the conduct of foreign affairs. However, the broader question really would be if the President doesn’t have the authority to recognize new governments, then who does? Placing that authority in the hands of Congress when no such power can be found in the confines of Article I makes no sense whatsoever, and the only other argument would be that nobody has such a power, which strikes me as pure nonsense. The fact that nobody in the Founding generation seemed to question Washington’s authority with respect to the recognition of Revolutionary France, argues strongly that it was accepted that this was part of the natural duties of the Chief Executive. In any event, while it’s an interesting academic argument, I find it hard to believe that the Supreme Court would rule that Congress has the authority to tell the President how to conduct foreign affairs.

There’s one final point that’s raised by this case, of course, and it involves the manner in which President Bush dealt with this law in 2002. Rather than vetoing the bill for its unconstitutional intrusion into the power of the Executive Branch, he signed the bill, and issued a signing statement in which he said:

Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

Now, given the fact that this provision was included within the text of the FY 2003 Foreign Relations Authorization Act (PDF), itself a document that was several hundred pages in length and authorized all manner of operations of the State Department and other government agencies, it’s perhaps unreasonable to expect any President to veto a bill over one section that may or may not have mandatory effect. Nonetheless, there is something troubling when a President signs a bill into law along with a statement that essentially says he’s going to ignore part of it.

In the end, I expect that the Court will side with the Administration here. The idea that Congress can be allowed to essentially overrule a foreign policy decision that was made in 1948 and reaffirmed by every President since goes against the entire history of  American foreign relations, and sets up some rather disturbing precedents for the future.
&nbs

Please follow and like us:
FILED UNDER: Law and the Courts, Middle East, US Politics, World Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Jay Tea says:

    The basic issue is simple:

    1) The United States recognizes Israel as a sovereign state.
    2) Israel has declared Jerusalem as its capitol.
    3) Ergo, those born in Jerusalem are entitled to claim to be born in Israel.

    J.

  2. tps says:

    I wonder if the Supremes took up the case to have a crack at the whole signing statements mess. Presidents don’t have a line item veto but use the statement as such. That’s a bit of a conflict I’d say.

  3. ponce says:

    Anders Breivik was also a big fan of crazy right wing Israeli settlers and their hatred of Muslims.

  4. @Jay Tea:

    Except of course no American President has recognized complete Israeli sovereignty over Jerusalem. Not within the 1948 borders and not within the 1967 borders. Congress doesn’t have the authority to change that.

  5. OzarkHillbilly says:

    The basic issue is simple:

    Jerusalem is an occupied city that Israel is attempting to unilaterally annex via illegal means (as per International Law).

  6. @tps:

    I wonder if the Supremes took up the case to have a crack at the whole signing statements mess. Presidents don’t have a line item veto but use the statement as such.

    That is not among the issues that the Court accepted on appeal.

  7. Jay Tea says:

    Doug, I seem to recall pretty much every American president for some time has promised to move the US embassy to Jerusalem… but none has.

    Ponce, do you have to be that much of an a-hole, or is that just your default when you have nothing substantive to contribute?

    Ozark: Jerusalem has been the “capitol” of the Jews for several thousand years. Even during its partitioned era, it was still their holiest site. They took half the city during a defensive war in 1948, the other half in the defensive war of 1967.

    The Muslim claim to Jerusalem is entirely based on the principle that anything that gives Israel any kind of historical or political credence must be denied and destroyed. While the Muslims held Jerusalem, Jews and Christians were denied access to their holy sites. Under Israeli control, the only ones denied access are Jews, who are limited to a tiny portion of the Temple Mount.

    J.

  8. ponce says:

    Ponce, do you have to be that much of an a-hole, or is that just your default when you have nothing substantive to contribute?

    Jay,

    You’re the one who expects the United States of America to back a massive land theft scheme being perpetrated by a band of religious fanatics.

  9. PD Shaw says:

    Hey, Anthony Weiner filed an amicus brief. There’s a name you haven’t heard for awhile.

  10. PD Shaw says:

    I seem to recall that Lincoln got Congressional approval in his recognition of Haiti because I recall debates on the floor as to whether polite Washington society could endure the existence of negros in their midst. Recognizing a brand new state is going to entail appointment of ambassadors subject to Senate confirmation and budgeting for diplomatic missions which would be subject to the power of the purse. Not very analogous to the unique situation of Israel and Palestine.

    I hope that the SCOTUS dismisses on political grounds, though the subject is interesting.

  11. mantis says:

    Ozark: Jerusalem has been the “capitol” of the Jews for several thousand years.

    Can we assume you’re in favor of giving North America back to the natives who lived here before the Europeans came? After all, they have the older claim to the land, and that’s all that matters, right?

  12. Argon says:

    However, the broader question really would be if the President doesn’t have the authority to recognize new governments, then who does?

    Google Earth. Heck, Nicaragua invaded Costa Rica because of where Google drew a line.

  13. Jay Tea says:

    @ponce: You’re the one who expects the United States of America to back a massive land theft scheme being perpetrated by a band of religious fanatics.

    Really, ponce? From whom is the land being stolen from? Are you saying that when a country is attacked and wins the resulting war, they should return all the territory conquered? Especially when there is no peace treaty formally ending the war?

    Are you one of those sophisticated “anti-Zionists,” or just a garden-variety Jew-hater?

    J.

  14. ponce says:

    Are you one of those sophisticated “anti-Zionists,” or just a garden-variety Jew-hater?

    Haha, Jay.

    It’s bad enough the entire country of Israel is operating as a criminal theft ring.

    It’s the way it tries to hide it behind a cloak of religious persecution that makes it particularly odious.

    The fringe right are always the victim.

    No matter how terrible their behavior, they are the ones being persecuted.

    No doubt Anders Breivik work some of the Israel’s criminal victimhood into his defense.

    http://www.jpost.com/International/Article.aspx?id=230762

  15. Jay Tea says:

    @ponce: To quote a woman far wiser than I:

    Anti-Semites of the world, just die already.

    Am Yisrael Chai.

    J. (Goy agnostic Zionist, and occasional neo-con)

  16. An Interested Party says:

    Who could of guessed that not toeing the Likud party line made one an anti-Semite…

  17. ponce says:

    Who could of guessed that not toeing the Likud party line made one an anti-Semite…

    It is funny.

    They don’t seem to realize the anti-Semite wand ran out of magic years ago(except among certain ancestors of the Confederacy).

  18. Jay Tea says:

    I didn’t call you one, ponce, just asking questions. Your own answers speak quite eloquently.

    I specifically described just how Jerusalem ended up back in Jewish hands. You, on the other hand… vague, vile slurs you can’t substantiate.

    It’s bad enough the entire country of Israel is operating as a criminal theft ring.

    By your logic, I presume you’re ready to trash Al Gore and the whole environmentalist movement over Ted Kaczynski?

    J.

  19. ponce says:

    I specifically described just how Jerusalem ended up back in Jewish hands.

    There are quite a few countries that have stronger historical claims on Jerusalem, Jay,starting with Iran and Iraq.

    If the Israelis really want to claim the Palestinians’ land as their own legally, they first need to make all Palestinians citizens of Israel and allow them to vote in national elections.

    In the mean time, as Jimmy Carter correctly pointed out, the Israelis have been engaging in Apartheid for the past 45+ years..

  20. Jay Tea says:

    Oh, the “Palestinians,” ponce? Tell me about these people. Tell me about their history. Their leaders. Their encounters with other nations. Cite their literature.

    Hell, name their goddamned currency.

    There is a Palestinian state. It’s called “Jordan,” formerly “Transjordan.” The part you’re talking about, I believe, is the 1947 partition lines. The Arabs NEVER accepted those, and promptly invaded to make the whole area Judenfrei. They told the “Palestinians” “get out of the way, we’re coming through, after we wipe out the Jews, you can take all the land back.” The Palestinians, by and large, did just that — and are still paying the price for making a very, very, very bad bet and backing the wrong side and trusting their Arab brethren.

    Who don’t let them have citizenship, even when they’re born in other Arab nations. Because having all those Palestinian “refugees” is a great cudgel that they love to use.

    About 800,000 Arabs fled Israel during the creation of Israel. And about 800,000 Jews fled Arab nations at the same time, fleeing to Israel. Should they be entitled to return and reclaim what they left behind?

    Grant the “right to return” to Palestinians? Why, been too long since the last genocide for ya? Look at the current territories governed by the Palestinians. The Gaza Strip is utterly and completely Judenrein — as ethnically cleansed as Hitler could ever wish. And in the West Bank, they’re only in fortified settlements, because they would be wiped out. Even so, they routinely are anyway.

    It’ll be interesting to see how the regular gang of suspects react. Most, I bet, will say nothing. A few will make a few snide asides at me. Not one of them, I’ll bet, will even acknowledge what you’ve said, let alone discuss or condemn it.

    J.

  21. An Interested Party says:

    It is certainly a legitimate point to condemn terrorism and to admit that tactic is not the proper way to achieve political demands…at the same time, as the leaders of Israel continue along their present course with settlement expansion and take a hard-line towards the Palestinians, what happens in a few decades when the Jewish population in the area between the Jordan River and the Mediterranean Sea is vastly outnumbered? What will Israel do then? Would it not be better to have a two-state solution now? In a few decades, things might become so ugly that all that has happened so far will seem like nothing by comparison…

  22. Jay Tea says:

    Interested, the Israelis gum up the peace process by building houses.

    The Palestinians gum up the peace process by firing rockets, setting off bombs, and beheading three-month-old babies.

    I don’t see the moral equivalence.

    J.

  23. ponce says:

    Oh, the “Palestinians,” ponce? Tell me about these people.

    The last, desperate attempt of all fringe right Israelis and their trained monkeys…try to deny the Palestinians even exist.

    Brilliant!

    Regardless of the Palestinians’ past Israel can’t take their land and deny them citizenship without taking its place alongside the most despised regimes in human history.

  24. An Interested Party says:

    Interested, the Israelis gum up the peace process by building houses.

    Umm, yeah, if only it were so simple as simply building houses….I think it has a little more to do with how and where they’re building those houses…

    I’m sure there are a lot of people who chafe at Carter’s description of the situation as Apartheid but, really, if the state of Israel continues along its current path, the Jewish population will end up being a minority in all the land that Israel controls…I’d love to know how Israel will continue to be “the only democracy in the Middle East” under those circumstances…

  25. Jay Tea says:

    ponce:

    Regardless of the Palestinians’ past Israel can’t take their land and deny them citizenship without taking its place alongside the most despised regimes in human history.

    Oh, Palestinians do exist. They’ve existed for decades as a tool for the Arab world. I note you don’t dispute anything I stated.

    Interested: Could you cite a single sign that the Palestinians are the least bit interested in a peaceful settlement with Israel? The last survey I saw showed about 70% against any kind of peace. I don’t recall a single round of peace talks that involved the Palestinians being asked to make a concession or good-faith gesture (the kind Israel always has to make).

    J.

  26. Rob in CT says:

    Israel’s settlement policies really are repugnant, Jay. It’s not just “building houses” Jay.

    Saying so does not make someone an anti-semite, or anti-Israel. It’s like saying “I think torture is wrong, I think enhanced interrogation is torture, so I think it should stop” means you hate America. I think the settlements are dangerous for Israel, for two main reasons: 1) they rile up the Palestinians making peace less likely; and 2) they screw with internal Israeli politics. The settlers have gotten a lot of support from the Israel government (pretty consistently, despite changes in the ruling coalitions) and are now an entrenched interest group that has a lot of compelling reasons to oppose just about any peace deal. Many would have to leave their homes if there’s a deal. That’s setting aside the obvious religious angle (many are really, really RW in a way that makes you look like a liberal).

    If I recall correctly, there was a time when majorities of both populations polled in favor of a deal. Now, IIRC, not only the Palestinians but also the Israelis have turned against negotiated peace. Moderates in both groups have lost faith in a neverending “process” that never brought peace. I think radicals on both sides share the blame (I wouldn’t put it at 50/50 – I’m not into just lazily splitting the difference) as do the third group you mentioned: Arab states. They have, indeed, dicked over the Palestinians for a long time.

    That said, Jay, what’s your solution to the problem?

    Mine, for all its faults, is a 2-state solution that involves land swaps that would remove most of the settlements (which is politically toxic in Israel, for reasons mentioned above and more), make Jerusalem an international city, and require that the Palestinian government recognize Israel, agree the deal is THE deal, not a stage in a process, and formally make peace w/Israel. Would it work? I dunno. Will it happen? Not anytime soon.

  27. Jay Tea says:

    Rob, has Israel ever been 100% committed to the peace process? Of course not.

    Have the Palestinians ever been about 100% opposed to the peace process?

    They’ve never made any “good-faith” gestures, kept any pledges, or honored any agreements. They are committed to the destruction of Israel, and have never wavered from that.

    J.

  28. Jay Tea says:

    My solution, Rob? I don’t think there is one. Not one any time soon, anyway. Golda Meir said it best: “Peace will come when the Arabs will love their children more than they hate us.”

    They got a long, long ways to go before that happens.

    J.

  29. Jay Tea says:

    Actually, Rob, I had an idea a while ago. Israel announces that it recognizes Palestine as a state. And then treats the very next terrorist attack (rocket, mortar, missile, suicide bombing) as an act of war and reacts accordingly.

    Fortunately, my little idea hasn’t been followed.

    J.