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.