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Monday, May 09, 2011

Justice for Jerusalem?

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).

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