Walter Russell Mead rips the President's attempt to exclude Congress from any say in approving the Iranian nuclear deal.
Dissing Congress is a risky move for American presidents. There have
been widespread reports that many Democrats on Capitol Hill would like
to support the President’s Iran policy, but are worried about the
political fallout among voters back home. In the end, many of these
waverers would probably support the President on the Iran deal in a
straight up Congressional vote, but if the President does an end run to
the Security Council, the waverers could—and many will—oppose him on
procedural grounds. Both the Senate and the House are jealous of their
Constitutional prerogatives, and voting to uphold the powers of Congress
is a much easier vote for Democrats than voting against the President
on an important foreign policy issue.
This is not likely to end well.
President Obama was stretching both his Constitutional powers and his
political mandate when he decided to short circuit the treaty process
for one of the most important decisions that American foreign policy has
taken in many years. There is precious little doubt that the Founders
would have considered this a threat to the system of checks and balances
they wrote into the Constitution. In modern times, presidential
authority has expanded, largely because American foreign relations have
become so complex and the world moves so quickly that it would be
impractical to subject every significant agreement between the United
States and other countries to the treaty process. But given the length
of this negotiation process and the enormous stakes involved, the Iran
agreement really ought to have been framed as a treaty. The President,
to be fair, knew very well that he could never get a two thirds vote in
the Senate for this agreement, and, believing as he does that this step
is necessary to the safety of the United States, he framed the deal as
an executive agreement to avoid exactly the scrutiny and vote that the
Constitution requires.
Congress grudgingly went along with that, passing the
Corker-Menendez law as a way of regularizing the President’s irregular
choice. This tilted the playing field toward the President, as opponents
would need a two thirds majority in both houses (instead of only a one
third majority in the Senate) to block the deal for good.
That the President is blowing off this concession by
Congress is a serious matter—more serious perhaps than the White House
realizes. He is really requiring Congress to accept a permanent and
significant diminution in its power for the sake of an Iran deal that
few members view with enthusiasm. The precedent he is setting changes
the Constitution, essentially abrogating the treaty power of Congress
any time a President can get a Security Council resolution to
incorporate the terms of an executive agreement.
Regardless of the merits or demerits of the Iran deal,
this is the wrong way to proceed. If President Obama chooses to go this
route, he is provoking a constitutional crisis in order to get sanctions
relief to Iran sixty days faster than would otherwise happen. The
Congressional Democrats calling on President Obama to refrain from this
mischievous and foolhardy course are quite right; this is a bridge too
far.
Why would Obama do this? The only reason I can think of is that he is afraid of how clear it could become within 60 days that this is a bad deal, and therefore he's taking the chance that the same Supreme Court majority that slashed Congress' powers in the Zivotofsky case and upheld his overreaching on Obamacare will also let him get away with this. Even impeachment would be too late to prevent the deal from standing with a binding UN Security Council resolution.
Video: Matt Lee owns new State Department spokesperson John Kirby on Jerusalem
John Kirby just became State Department spokesperson last month and I can already tell you that he's no better than Marie Harf.
Watch him squirm as he tries to figure out US policy on Jerusalem while under questioning from @APDiploWriter Matt Lee about Monday's Supreme Court decision that Congress overstepped its bounds in trying to require the State Department to register Jewish children born in Jerusalem (like four of mine) as having been born in Israel.
Let's go to the videotape.
Keep making them feel uncomfortable Matt! They'll find a policy one of these days.
The court ruled 6-3 that Congress overstepped its bounds when it
approved the law in 2002. It would have forced the State Department to
alter its long-standing policy of not listing Israel as the birthplace
for Jerusalem-born Americans and listing only "Jerusalem."
The policy is part of the government's refusal to recognize any
nation's sovereignty over Jerusalem, until Israelis and Palestinians
resolve its status through negotiations.
Justice Anthony Kennedy said in his majority opinion that the
president has the exclusive power to recognize foreign nations, and that
the power to determine what a passport says is part of this power.
"Recognition is a matter on which the nation must speak with one voice. That voice is the president's," Kennedy wrote.
The ruling ends a 12-year-old lawsuit by a Jerusalem-born American, Menachem Zivotofsky, and his U.S. citizen parents.
Justice Antonin Scalia read a summary of his dissent from the bench,
saying the Constitution "divides responsibility for foreign affairs
between Congress and the president." Chief Justice John Roberts and
Justice Samuel Alito joined the dissent.
Justice Clarence Thomas agreed with the outcome of the case, but on narrower grounds.
If the Republicans win the White House, we will have some hope that this opinion becomes solely academic. But while this ruling was expected, it is certainly disappointing.
U.S. Solicitor General Donald Verrilli, who is rumored to
be in the running to replace outgoing Attorney General Eric Holder,
drew the comparison on Monday while he attempted to convince the Supreme
Court that Jerusalem is not officially part of Israel.
...
During Monday’s arguments before the court, Solicitor General
Verrilli maintained that a formal acknowledgment of Jerusalem being part
of Israel would be tantamount to the United States putting “Crimea,
Russia” on a citizen’s passport.
Verrilli was referring to the Ukrainian region of Crimea, which Russia forcefully seized earlier this year.
“The position of the executive [Obama] is that we recognize, as a
practical matter, the authority of Israel over West Jerusalem,” Verrilli
argued, according to court transcripts. “With respect to the rest of Jerusalem, the issue is far more complicated.”
“I do think, for example, Your Honor,” Verrilli said to Justice
Samuel Alito, “if [we] were to start issuing passports to people born in
Crimea tomorrow that identified Russia as the country of birth, that
would carry obvious implications for our foreign policy position, and it
would contradict the foreign policy position in a way that could be
quite deleterious.”
As with the disputes over Crimea’s status, stating that Jerusalem is
part of Israel also would interfere with the White House’s policy
positions, Verrilli argued.
I don't know in which hospital Menachem Zivotofsky was born, but every Jewish hospital in Jerusalem is in 'west' Jerusalem, with the exception of Hadassah Mount Scopus, which was part of an enclave that was within Israel between 1948-67. So even according to the administration's own arguments, we ought to be able to put "Jerusalem, Israel" on our children's US passports as their birth place.
He's grown up a bit since you last saw him, but the kid on the left is Menachem Zivotofsky, the plaintiff in Zivotofsky v. Kerry (formerly known as Zivotofsky v. Clinton, Zivotofsky v. Rice and probably one or two more I'm forgetting), and he was in court in Washington on Monday to hear his lawyers argue to put "Jerusalem, Israel" on his passport as his birthplace. Four of my eight children (including one Menachem's age) are similarly situated, although two of them were born before the law on which Menachem relies was enacted.
My bet is that, unfortunately, it's going to go 5-4 against us, with the Obama appointees carrying the day.
Liberal members of the court seemed to agree with the Obama
administration — and President George W. Bush before him — that the 2002
passport law embraces the interpretation that Jerusalem belongs to
Israel and therefore should be seen as an unconstitutional intrusion on
the executive branch’s role in setting the nation’s foreign policy.
Conservatives
seemed to endorse the view that Congress was simply enabling
“self-identification” of those born to Americans in the city, and that
it does not affect the recognition issue.
It appeared
that the outcome would be determined by Justice Anthony M. Kennedy. He
looked for a compromise — some version of a passport disclaimer by the
president — but also indicated that he believes the court must yield to
the executive branch in matters of foreign affairs.
Unless Kennedy changes his mind, I think we will lose this one.
US Supreme Court agrees to decide whether Congress can decide that Jerusalem is Israel's capital
Maybe by Menachem Binyamin Zivotofsky's Bar Mitzva they'll resolve it. Zivotofsky v. Kerry (formerly Clinton and several others) is going back to the Supreme Court again.
Now at the high court, the case will examine a constitutional question
of checks and balances: whether the president of the United States is
the sole authority able to declare US foreign policy, or whether
Congress may pass law overriding the policy.
Congress attempted to pass such a law in the 2003 Foreign Relations
Authorization Act , which declared that “the Secretary [of State]
shall, upon the request of the citizen or the citizen’s legal guardian,
record the place of birth as Israel " in that citizen's passport.
The
legislation had wide support among major American Jewish
organizations, such as the Jewish Federations of North America and the
American Jewish Committee. But over the summer, a federal appeals
court struck down key provisions of that law, ruling the president
retains the ability to determine Jerusalem's sovereignty over
Congress based on constitutional grounds.
...
Congress has pushed against the White House on this matter
through several administrations. However, the State Department, through
both Democratic and Republican administrations, has refused to directly
declare Jerusalem the Israeli capital or indirectly declare the city
Israeli territory through passport listings.
Asked on Monday to
comment on the ruling, State Department spokeswoman Jen Psaki said that
the government's position on Jerusalem's status had not changed.
For those who have forgotten, here's AP's Matt Lee taking apart Jen Psaki's predecessor, Victoria Nuland on this issue.
Back to the Supreme Court for the Zivotofsky's: Court of Appeals says only President can decide what country includes Jerusalem
The United States Court of Appeals for the DC Circuit ruled unanimously on Tuesday that Congress had no right to pass a law that allow 11-year old Menachem Binyamin Zivotofsky to have his birthplace listed on his US passport as "Jerusalem, Israel." And so, Menachem's parents, Ari and Naomi Zivotofsky are once again going to appeal to the Supreme Court of the United States.
A unanimous three-judge panel of the US Court of Appeals for the
District of Columbia Circuit ruled that the president - and not
lawmakers - had sole authority to say who controls the historic holy
city claimed by Israelis and Palestinians.
In the US government,
the president "exclusively holds the power to determine whether to
recognize a foreign sovereign," wrote Judge Karen Henderson for the
panel.
Since the founding of Israel in 1948, US presidents have
declined to state a position on the status of Jerusalem, leaving it as
one of the thorniest issues to be resolved in possible future peace
talks.
...
The Zivotofskys plan to ask the high court's opinion again, their lawyer, Nathan Lewin, said on Tuesday.
"Today's
majority and concurring decisions acknowledge that the constitutional
issue presented by this case is significant and calls for resolution by
the Supreme Court," Lewin said in a statement.
An estimated
50,000 American citizens were born in Jerusalem and could have used the
law, if it were enforced, to list Israel as their birthplace.
Four of Mrs. Carl's and my children were born in Jerusalem, Israel.
King Barack should implement law on 'Jerusalem, Israel'
You will recall that my friend Ari Zivotofsky has a court case going trying to get the US State Department to refer to his son Menachem's birthplace as "Jerusalem, Israel" on his US passport. The issue in the case is the State Department's refusal to list young Menachem's birthplace as "Jerusalem, Israel" despite an act of Congress decreeing that it should be so listed if the parents so choose.
Now, hold that thought and consider this from Mark Steyn with respect to Obamacare:
Jonah yesterday, apropos ObamaCare and the postponement of the
employer mandate, said we were now living under an “arbitrary system” in
which “the political arm of the White House gets to decide what laws are going to be enforced and which ones aren’t“.
I made a similar point guest-hosting for Rush last Friday, noting that this was one of the indictments against George III in the Declaration of Independence:
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
When
legislatures pass laws but the head of state decides which ones he’ll
implement and which he won’t, that is a monarchy – and not a
constitutional but an absolute one.
...
President Obama has developed a habit of “dispensing with and
suspending” all manner of laws from health care to immigration. If he
gets to choose which laws he’ll enforce, do we get to choose which laws
we follow?
From health care to immigration to Jerusalem, Mark? I think so.
Rick Richman reports that a decision in Zivotofsky v. Secretary of State - the case about 11-year old Menachem Zivotofsky's demand to have "Jerusalem, Israel" listed as his birthplace on his American passport - could come any day now from the United States Court of Appeals for the District of Columbia. Richman argues that the White House's characterization of President Obama's recent trip to Israel destroys the claim that allowing young Master Zivotofsky to have "Jerusalem, Israel" on his passport would destroy the 'peace process.'
In oral argument before the D.C. Circuit on March 19, Master
Zivotofsky’s lawyer, Nathan Lewin, began by noting that the
administration’s invocation of a threat to the “peace process” was
difficult to square with the manner in which President Obama’s latest
trip was being described on the White House website:
“[T]he White House has issued a press release
publicizing the trip to ‘Israel, the West Bank, and Jordan,’ and
listing an itinerary that is almost entirely within the City of
Jerusalem: meetings in Jerusalem with the President of Israel and
Israel's Prime Minister, two overnight stays in the King David Hotel, a
speech in the Jerusalem Convention Center, and visits to Mount Herzl,
Yad Vashem, and the grave of former Prime Minister Rabin. It's hard to
imagine any more symbolic and concrete official recognition of Jerusalem
as being within Israel than the way the White House describes this trip
by the President to prominent Jerusalem sites as a trip to Israel.”
Richman goes on to argue that it's not clear why the Obama administration did not drop the case after the Supreme Court ruled that it should go to trial.
It is not clear why the administration didn’t simply drop the case
after the Supreme Court ruled Zivotofsky had a right to bring it. The
case could have been resolved the way President Clinton treated the 1994
law that gave Taiwan-born Americans the right to have “Taiwan” on their
passports instead of “People’s Republic of China.” Clinton faithfully
executed the law, but announced U.S. “one China” policy would not
change. President Obama could have done the same thing – apply the law
to Zivotofsky’s passport but announce it signaled no change in U.S.
foreign policy.
President Obama could even have blamed President George W. Bush in the process.
In any event, it seems a bit disingenuous at this point to continue to
assert that denying Master Zivotofsky his right under the 2002 law is
necessary to preserve the “peace process.”
Well, yes, it's disingenuous to deny Master Zivotofsky his rights because it's necessary to preserve the non-existent 'peace process.'
But the Obama administration will go to any length to avoid officially recognizing Israel's capital in any way, shape or form - something that is not done to any other country in the world - and that is precisely why it has continued to pursue this case. In fact, Obama's itinerary during his recent trip listed his stops as "Tel Aviv, Israel" and "Jerusalem" (see the schedule at the bottom of the page). If anything, they are quite consistent about it.
Hopefully, it will cost them dearly. In a monetary sense, at least, it already has.
The U.S. Supreme Court returned to the lower courts the issue of whether Americans born in Jerusalem may list "Israel" on their passports -- a ruling that drew praise from Jewish groups.
The decision delivered Monday was a success for the family of Jerusalem-born boy Menachem Zivotofsky. His family for years has sought to force the State Department to agree to state on his passport that he was born in Israel, citing a law passed by Congress in 2002.
President George W. Bush signed the law, but in doing so refused to implement it, citing executive prerogative in foreign policy. President Obama has continued that practice.
The Supreme Court, in an 8-1 decision, overruled lower court decisions that had contended that the judicial branch does not have authority over this area since it is not the courts' place to determine foreign policy.
"The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution," Chief Justice John Roberts wrote for the majority.
Justice Stephen Breyer dissented.
YES! I have four children and three grandchildren who were born in JERUSALEM, ISRAEL!
You can find the transcript of the oral argument before the Supreme Court in Zivotofsky v. Clinton (the case about putting Israel in the passports of US citizens born in Jerusalem) here.
I haven't read it all yet, but from what I've read so far, it does not look promising.
9-year old Menachem Zivotofsky got his first trip to the United States this week - to watch the oral arguments in Zivotofsky v. Clinton at the US Supreme Court on Monday.
The petitioners maintain that Menachem Zivotofsky is one of an estimated 50,000 Jerusalem-born American citizens who have been unfairly barred from listing their place of birth as Israel.
The federal statute that grants those passport holders the right to essentially identify their place of birth as they see fit has been ignored by the administrations of both George W. Bush and Barack Obama, with Bush claiming that it infringes on the president’s authority to formulate foreign policy positions, such as the administration’s stance on the status of Jerusalem.
Secretary of State Hillary Rodham Clinton, the named respondent in the Zivotofskys’ litigation, heads the chief foreign policy arm of the executive branch. She has argued that the State Department’s regulations governing the passport designation of Jerusalem-born American citizens have rightly served to maintain U.S. neutrality on the sensitive issue of sovereignty over Jerusalem. The Zivotofskys contend that the policy is biased against Israel and against Jews who have a religious attachment to the land.
“Congress recognized that with regard to the 50,000 people who have a passport that says ‘Jerusalem,’ they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification,” Lewin told the court in reponse to a question from Justice Samuel Alito. “This is not a statute that is designed to create some political brouhaha or make a foreign policy statement.”
Arguing on behalf of Clinton, Solicitor General Donald Verrilli acknowledged that the position of the administration is that the status of Jerusalem is disputed, and he added: “A passport is not a communication by the passport holder. It’s an official United States document that communicates the position of the United States.”
In response to a challenge from Chief Justice John Roberts, Verrilli added: “I do think that this is an area in which the executive’s got to make the judgment because it’s of paramount importance that the nation speak with one voice.”
The executive’s handling of the Jerusalem issue, Verrilli told the justices, “is a very sensitive and delicate matter. This position was arrived at after very careful thought and it is enforced very carefully.”
The State Department has contended, according to the petitioners, that if American citizens who are natives of Jerusalem are permitted to self-identify as being born in “Israel,” that would create the misperception among Arab states that official U.S. policy on the sovereignty of Jerusalem had changed, which in turn could have serious foreign policy repercussions. The Zivotofskys, however, maintain there is no evidence that would happen.
Further exploring that issue, Kagan posed a hypothetical in an exchange with Verrilli. Suppose, she said, the law governing passports included a disclaimer that stated: “The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel’s sovereignty over Jerusalem.”
“Would that be constitutional?” she asked.
Probably not, Verrilli responded.
I have four children who were born in Jerusalem, Israel.
We heard here that the oral argument gave the impression that the Justices would eventually decline to interfere in the case because it's a political question. But this article makes it sound like that may not be so. As someone old enough to remember Nixon v. United States (the White House tapes case, which was decided 9-0 in favor of forcing Nixon to turn over his tapes), I'd love to see the Court come down on Congress' side.
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.
...
“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.”
...
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.
Obama tries to scrub Bush White House and State Department references to 'Jerusalem, Israel'
Our friends the Zivotofsky's (yes, of course Mrs. Carl and I know them) are sure making life miserable for the Obama administration.
You will recall that last week I reported that the White House had scrubbed clean references on its own website to "Jerusalem, Israel," in preparation for the Supreme Court hearing in Zivotofsky v. Clinton. Now, Omri Ceren reports in Commentary that the White House is trying to rewrite the Bush administration's relationship with Israel to claim - as usual - that Bush did the same thing. Well, he didn't.
Sometimes Bush-era White House photos explicitly identified Jerusalem as being in Israel and sometimes they didn’t, just like sometimes they explicitly identified Tel Aviv as being in Israel and sometimes they didn’t. A naive “Jerusalem, Israel” Google search on the Bush White House archives is sufficient to turn up this 2002 photo of Vice President Cheney captioned as “a press briefing in Jerusalem, Israel.”
It also turns up this photo labeled “Mrs. Laura Bush visits the Western Wall Tunnels… in Jerusalem, Israel.” That’s from the exact, precise, identical tour that Kredo linked to in order to “hammer home the point” that the Bush administration “never explicitly labeled [Jerusalem] as part of Israel.”
Getting beyond photo captions, Bush-era documents show that the previous White House was indeed able to correctly identify the city of Jerusalem as being inside the state of Israel. The record shows that the President even acknowledged that the Jerusalem consulate – the same one that won’t issue passports referencing “Jerusalem, Israel” – was located in Jerusalem, Israel. Bush’s statement nominating Jeffrey Feltman to be ambassador to Lebanon, for instance, explicitly described Feltman’s previous position as “Deputy Principal Officer at the U.S. Consulate General in Jerusalem, Israel.”
It gets worse for Obama’s defenders, though, than merely being demonstrably wrong. It turns out that while they were insisting that the Bush administration consistently refused to reference “Jerusalem, Israel,” the Obama State Department was busy scrubbing documents in which Bush administration referenced “Jerusalem, Israel.” Straight down the memory hole. That’s kind of amazing when you pause and think about it, no?
The “Jerusalem, Israel” captions and statements from the Bush-era White House are digitally archived and frozen, and so beyond the administration’s reach. But Bush-era State Department reports are stored on the Obama State Department’s servers. Two old documents in particular – the State Department’s FY 2002 and FY 2003 Performance and Accountability Reports – come up quickly in searches. When they were originally written they both had appendices identifying the location of the Jerusalem consulate as “Jerusalem, Israel.” Some time in the last two weeks that location was changed to “Jerusalem.” Whoever made the changes even went back and scrubbed the old “hard copy” PDFs. You can do the compare and contrast yourself. Click on these links for scrubbed versions of FY 2002 HTML, FY 2003 HTML, FY 2002 PDF, FY 2003 PDF, and on these links for cached original versions of FY 2002 HTML, FY 2003 HTML, FY 2002 PDF, FY 2003 PDF.
I guess that the Obama administration has hired Donald Segretti as a consultant.
This is the first live post of the weekend. If you followed me on Twitter, you would know already that the reason for this is that I took the wrong computer to the hospital on Saturday night.
You will recall that this past week I covered the story of the White House 'cleansing' its web site from references to Jerusalem, Israel.
I treated that story as yet another instance of the rank amateurism of the Obama administration. James Taranto sees a more devious, albeit failed, agenda.
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.
Does the White House really think that Chief Justice Roberts is that slow? Maybe it does. After all, Senator Obama voted against Roberts' confirmation. Revenge is sweet, isn't it?
Say it ain't so: AJC won't get involved in arguing that Jerusalem is Israel's capital
I have discussed the Zivotofsky case, in which Jerusalem-born 9-year old Menachem Zivotofsky seeks to exercise his right to have Israel listed as his country of birth on his US passport, several times, most recently here.
Many American Jewish organizations are filing amicus curiae (friend of the court) briefs, which are due this week. Shockingly, the American Jewish Committee is not only filing a brief in opposition to the Zivotofsky's, but it is arguing that Israel has no right to designate any part of Jerusalem as its capital. That, like everything else, must be 'left to negotiations' in the view of the AJC.
But there is not unanimity in the Jewish community over this issue. Marc Stern, associate general counsel of the American Jewish Committee, said his organization believes “all issues in the Israel-Palestinian conflict have to be settled at the negotiating table and not the U.S. Supreme Court or the UN with unilateral declarations. For that reason we not participating in this case because we think it is inconsistent with our general view that peace will come to the Middle East at the negotiating table and at no other forum.
“It doesn’t mean that we don’t think West Jerusalem isn’t part of Israel,” Stern continued. “We do and we have our office there, and we say it is Jerusalem, Israel. But this is about official declarations, and official declarations don’t come about because somebody goes to court.”
But no one other than the government of the United States and the 'Palestinian rejectionist' groups has ever suggested that 'west' Jerusalem would not be part of Israel and could not be Israel's capital. The peace processors keep telling us that 'two states for two peoples' will each have their capital in Jerusalem. And none of the Jewish hospitals in Jerusalem are across the 1949 armistice lines (even Hadassah Mount Scopus is built on land that remained part of Israel between 1948-67). Menachem Zivotofsky was born in 'west' Jerusalem.
In fact, the issue in this case is not the 'peace process' or who will control Jerusalem. The issues are whether the State Department has the right to act contrary to a law passed by Congress and whether private citizens have the standing to contest the State Department's behavior when they are directly affected.
Moreover, in a remarkably similar case, the State Department acceded to Congress' desire.
The government argues that agreeing to such a change now would in effect compel the president to recognize Israeli sovereignty over Jerusalem — “one of the most sensitive and longstanding disputes in the Arab-Israeli conflict” — resulting in major foreign policy ramifications.
But Alyza Lewin and her father, Nathan, who are representing Menachem, said in court papers filed last Friday that the government’s claim is “greatly exaggerated.” They pointed out that the U.S. in 1994 enacted a “virtually identical statute” regarding Taiwan over the vehement objections of China, which claims sovereignty over the island.
“The Department of State altered its earlier rule to comply with the statute and there was no perceptible effect on United States’ foreign policy,” according to their court papers.
At the same time, the brief said, Israel is “a recognized nation that Palestinians and the Arab world have learned to accept. … [The State Department] bars only supporters of Israel — overwhelmingly Jews who have a religious attachment to the land — from identifying their birthplace in a manner that conforms with their convictions.”
Marc Stern has it wrong (and our mutual friends who read this blog are invited to tell him so). This has nothing to do with the 'peace process.' It has to do with the right of Israel and Israelis to be treated like every other country in the World by the United States. Doesn't America's #1 ally at least deserve that much?
Are you or your child an American citizen born in Jerusalem
I received the following via email.
July 27,2011 25 Tammuz 5771
- LET YOUR VOICE BE HEARD -
on behalf of American citizens born in Jerusalem
who are denied the right to have their country of birth – ISRAEL –
listed as their place of birth on their U.S. passports.
The case of Menachem Zivotofsky v. Secretary of State Clinton (No. 10-699) will be heard by the U.S. Supreme Court in November 2011 and decided by the end of June 2012.. At issue is the right of a Jerusalem-born American citizen to self identify as born in “Israel” on his or her U.S. passport.
For more information about the case, and to express your support please visit www.borninjerusalem.org, a website set up by The National Council of Young Israel and the International Israel Allies Caucus Foundation.
1.Learn more about the case of Menachem Zivotofsky v. Secretary of State.
2.Send a letter to your U.S. Senators and Congressional Representatives urging them to sign an amicus brief that will be filed on August 5, 2011 in support of Zivotofsky on behalf of Members of Congress.
3.Add your voice to the case. If you are an American citizen born in Jerusalem who wishes to have your place of birth recorded on your U.S. passport as “Israel,” please go to www.borninjerusalem.org and join the ad-hoc Association of Proud American Citizens Born in Jerusalem, Israel. The Anti-Defamation League, together with the law firm of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., is preparing an amicus brief to be filed in the Zivotofsky case on behalf of the ADL and the Association.
Did you know that the general rule for American citizens born abroad is that their U.S. passports list their country of birth as their place of birth? The only mandatory exception is for American citizens born in Jerusalem. The U.S. Department of State refuses to list “Israel” as the place of birth for American citizens born in Jerusalem because it claims that doing so would interfere with the President’s authority to “recognize foreign sovereigns.” Instead the State Department lists “Jerusalem” as the place of birth.
The State Department permits citizens born in Jerusalem or elsewhere in Israel before 1948 to list their place of birth as “Palestine.” Citizens born in the territories after 1948 have “West Bank” or “Gaza Strip” as their place of birth even though no American President has ever recognized such sovereigns. In addition, the State Department permits American citizens born in a city that is within the recognized boundaries of Israel such as Tel Aviv or Haifa to substitute the city of their birth if the person “object[s] to showing Israel . . . as their birthplace in the passport.” In other words, those who wish to remove “Israel” from their U.S. passports may go against the general rule and list their city of birth instead of their country of birth. But those born in Jerusalem who prefer that their passports follow the general rule (and list their country of birth as the place of birth) may not list “Israel” on their passports.
In 2002, Congress passed a law to rectify this inequity. The law required the State Department to list the place of birth on U.S. passports as “Israel” for those American citizens born in Jerusalem who request it. When the law was enacted, President George W. Bush issued a “signing statement” declaring that the law impermissibly interfered with his constitutional authority to conduct foreign affairs so that he would not follow it.
Menachem B. Zivotofsky is an American citizen born in Jerusalem shortly after the law was passed. His parents requested that the place of birth on his U.S. passport be listed as “Israel.” The State Department refused, and instead listed “Jerusalem.” Nathan Lewin and Alyza D. Lewin of Lewin & Lewin, LLP, agreed to represent the Zivotofskys and have litigated the case pro bono for eight years. Their case has now made its way to the U.S. Supreme Court, which will hear arguments in November 2011.
As I reported last week, the US Supreme Court has granted certiorari (the right to a hearing) to 9-year old Menachem Binyamin Zivotofsky, who would like his American birth certificate and passport to say that he was born in Jerusalem, Israel.
The facts in the case are well-known and are not - as far as I am aware - in dispute. Menachem was born in Jerusalem in 2002 seventeen days after the US Senate unanimously tacked a provision onto an appropriations bill that required the State Department to register Jerusalem births as "Jerusalem, Israel" if the parents so desired.
But when President George W. Bush signed the bill - passed by a Republican-controlled House and a Democratic-controlled Senate - he issued a signing statement saying that he would not abide by the Jerusalem provision, arguing that it impermissibly infringed upon the President's power to recognize foreign sovereigns, a power that he argued derives from the Constitution's granting the President power to "receive Ambassadors and other public Ministers."
Both the Bush and the Obama administrations have attempted to deny young Master Zivotofsky his day in court, arguing that the case presents a political question with respect to which the US Supreme Court (unlike the Israeli one) is required to stand down.
But what is the issue? Is it Jerusalem? Is it signing statements? Is it the President's constitutional prerogatives? Is it the political question doctrine? Or is it perhaps something else? The New York Sun reports that Zivotofsky's lawyer - Nathan Lewin - won cert (as lawyers call it) by minimizing the issue at hand.
One of the ironies in the case is that the lawyer for Master Zivotofsky, Nathan Lewin, a legendary practitioner at the constitutional bar, won certiorari in the case by arguing, in effect, that it was much less of a big deal than Mrs. Clinton is making it out to be. On its face his petition for a hearing doesn’t ask the Supreme Court to sort out who owns Jerusalem or who gets to decide the question or who runs foreign policy of the United States. Congress, after all, passes laws in respect of all kinds of things that affect foreign policy. What he does suggest is that the Congress has enough power to write the rules for issuing certificates of birth abroad and to require the government to accede to parents’ wishes on the matter.
That may have been Lewin's argument, but it's not how the Supreme Court saw it.
The justices of the Supreme Court, in their order saying they’d take the case, signaled that they see the standoff between the Congress and the presidency as a central issue. The editor of the Sun, writing about the case in the Wall Street Journal, quoted the Supreme Court’s order, as specifically instructing the lawyers to focus on whether the law “impermissibly infringes the President’s power to recognize foreign sovereigns.” The power to which the Court refers stems from language in Article II of the Constitution, which is the article that creates the presidency and states that the president “shall receive Ambassadors and other public Ministers.”
But which foreign sovereign is being recognized (or not) based on whether Menachem Zivotofsky's passport says "Jerusalem" or "Jerusalem, Israel"? Yisrael Medad made a comment at the Sun's website (reproduced here as part of a lengthy post on the case) that sheds some light on that question:
There is a flip side to this coin: at present State Dept. regulations instruct, as a first choice, that a child of an American citzen born outside of the Green Line but within the area currently administered by Israel, - for example, a Jewish woman in Shiloh or Efrat or an Arab woman in Ramallah or Bil'in - shall have his birth place registered as "_____, West Bank" (only if the parents object, then just the city will be noted, like in the case of Jerusalem).
In other words, State Dept. clerks have created a 'state' called the West Bank but refuse to recognize Israel viv a vis Jerusalem even though, it should be recalled, the geographical terms "Judea" and "Samaria" appear in the UN's 181 decision in the section delineating the borders. Why not Shiloh, Samaria or Bethlehem, Judea?
Obviously it is not law involved but diplomacy and political policy and despite my lack of professional constitutional law grounding, I would suggest that law (Congress) aslways takes primacy over policy (State Dept.).
So has the Supreme Court presented the issue as whether it is in the exclusive power of the President to determine what states to recognize, including an Arab 'Palestinian' state on the 'West Bank'? After all, Harry Truman decided by himself - against the advice of the State Department - to recognize Israel.
And on that note, let's turn for a minute to Seth Lipsky's Wall Street Journal article on the Zivotofsky case (for those who don't have a Wall Street Journal subscription, the full article is available here).
Former Israeli Prime Minister Menachem Begin used to warn against deciding the political status of Jerusalem in the U.S. Congress.
I'm kind of surprised at that quote, because for most of the last 63 years (and even before), Israel got a far more sympathetic hearing from Congress than it did from the Executive branch (and particularly from the State Department). In fact, Begin himself had an often tense relationship with Jimmy Carter during their overlapping terms in office.
Can a president, in signing a piece of legislation, announce that he doesn't agree with part of it and doesn't intend to enforce the law?
The answer to that question ought to be no. In the American system, Presidents for years have sought and have failed to receive a 'line item veto' in the government budgetary process. If they can't have such a veto when it comes to spending, why should they have it anyplace else? (Not to mention that the legislation that included the Jerusalem provision was an appropriations bill).
In the fight over whether the Supreme Court would take the case, Mrs. Clinton echoed Mr. Bush's concerns, citing her department's view that "any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process."
Actually, one could argue that it shows nothing of the sort. All of the hospitals in Jerusalem in which Jewish children are born are located in 'west' Jerusalem with the exception of Hadassah Mount Scopus, which is located in an area that was nevertheless under Israeli control between 1949-67. By refusing to recognize Menachem's birth as being in Jerusalem, Israel, the Obama administration is saying that it doesn't recognize any part of Jerusalem as being part of Israel. Yes, I know, that has officially been the US position since before 1967, but most Americans don't understand that, and do at least - along with their elected representatives - recognize Israeli sovereignty in 'west' Jerusalem.
So far, lower courts have agreed with Mrs. Clinton that this matter is a "political question" and not justiciable. But the young Mr. Zivotofsky's lawyer, Nathan Lewin, was able to convince the Supreme Court to hear the case by arguing, in part, that this matter is no longer a "political question" precisely because Congress has already acted.
Given all the other foreign affairs and political disputes in which Congress does act—from foreign aid to the United Nations to the Senate's ratification of treaties—it's illogical to suggest that the terms for issuing certificates of birth abroad are beyond the reach of the elected legislature.
Actually, there's a tension built into American foreign relations by the contradictory grants of the power of the purse and the power to declare war to Congress, while the President is the Commander in Chief of the army and therefore is the ultimate framer of orders to the American military.
All in all it's a fascinating case, and one I hope that Menachem and his parents - Ari and Naomi - win (yes, we know them). But couldn't you guys at least have an easier to spell last name? I just discovered I've been spelling it wrong for years (Zivotovsky rather than Zivotofsky).
I am an Orthodox Jew - some would even call me 'ultra-Orthodox.' Born in Boston, I was a corporate and securities attorney in New York City for seven years before making aliya to Israel in 1991 (I don't look it but I really am that old :-). I have been happily married to the same woman for thirty-five years, and we have eight children (bli ayin hara) ranging in age from 13 to 33 years and nine grandchildren. Four of our children are married! Before I started blogging I was a heavy contributor on a number of email lists and ran an email list called the Matzav from 2000-2004. You can contact me at: IsraelMatzav at gmail dot com
