Israel Matzav: Jerusalem gets its day in court

Monday, October 03, 2011

Jerusalem gets its day in court

Jerusalem is getting its day in court in Washington DC. During the term that opens today, the Supreme Court will hear oral arguments in the case of Zivotofsky v. Clinton, in which the parents of Menachem Binyamin Zivotofsky argue that their son's place of birth should be listed as "Jerusalem, Israel" on his American passport. Here's a rather lengthy and well-done summary of the case.

The State Department refuses to comply with a provision in a congressional statute, the Foreign Relations Authorization Act for Fiscal Year 2003, which requires the State Department to record a Jerusalem-born U.S. citizen’s place of birth as “Israel” if requested to do so by the citizen or his or her legal guardian. This particular instance of dereliction of the president’s constitutional duty to “take care that the laws be faithfully executed” began during the Bush administration and is continuing apace during the Obama administration. An estimated 50,000 individuals, who were born in Jerusalem but are considered American citizens because of their parents’ American citizenship, are affected.

Now a case challenging the State Department’s refusal to comply with the law is going to the Supreme Court, against the wishes of the Obama administration. The Supreme Court directed the parties in the case of Zivotofsky v. Clinton to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns.” After losing its argument that the Supreme Court should not hear the case at all, Secretary of State Hillary Clinton’s State Department filed a brief last month with the Supreme Court sharply attacking the Jerusalem-related portion of the Foreign Relations Authorization Act that Clinton had voted in favor of while serving as New York’s junior senator.

The Obama administration brief makes unprecedentedly broad claims of exclusive presidential power. And it also misrepresents the Obama administration’s stance toward the final status of Jerusalem as one of neutrality, which it claims would be undermined by the Foreign Relations Authorization Act’s passport requirement.

The truth is that the Obama administration is not neutral. It has conflated the Palestinians’ claims to “East Jerusalem” with their claims to West Bank territory. By failing to distinguish between the building of Jewish residences within Jerusalem versus settlements on West Bank territory, the Obama administration has sided with the Palestinians against Israel on a critical issue.

As Israeli Prime Minister Benjamin Netanyahu said, “Jerusalem is not a settlement. It’s our capital.” He has history on his side. Jews have been living in Jerusalem continuously for more than three millennia. In more recent times, they have constituted the largest single group of inhabitants there since at least the 1840s.

Whatever the reason for the Obama administration’s embrace of the Palestinians’ claims, it should not be entitled to disregard the law on the books concerning the issuance of passports and substitute its own arbitrary edicts.

Contrary to the Obama administration’s assertion of exclusive power with regard to the issuance of passports, Congress’ constitutional power to regulate the conditions for issuing passports has long been recognized by the Supreme Court. True, the Supreme Court has said in the past that when there is broad rulemaking authority granted in an applicable statute to the executive branch and Congress does not override the consistent administrative construction of the statute by the executive branch, the courts must generally defer to the administrative determination. However, this case involves precisely the opposite situation. The Foreign Relations Authorization Act’s Jerusalem provision expressly limits powers that Congress had granted to the executive branch with respect to making rules for the issuance of passports in one specific respect. It said: “For … a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel” (emphasis added). “Shall,” not “may,” is the operative word.

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“If a US citizen is born in Tel Aviv, his passport will designate his place of birth as Israel. But in the case of Jerusalem, the US Consular Department will not give the country of birth as Israel,” said Menachem’s father to the Jerusalem Post. “Even though our son was born in Shaare Zedek Hospital, which is in West Jerusalem, the US Consular Department does not recognize it as being Israel.”

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The conventional wisdom is that the Supreme Court will not take a bold stance. Instead, the bet is that it will affirm the lower courts’ rulings and end up deferring to presidential authority in the foreign policy arena. However, the fact that the Supreme Court decided to take the case for review in the first place and directed the parties to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns” indicates to me that the court may well surprise us. Let’s hope that it does and places clearly defined limits on the executive branch.