The US Supreme Court Set to Rule on Jerusalem

My Right Word

On an issue I blogged last week, the New York Sun's editorial deals with the upcoming US Supreme Court case on Jerusalem which as noted here:

The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in MBZ v. Clinton [docket; cert. petition, PDF] to determine whether the political question doctrine [Cornell LII backgrounder] deprives a federal court of jurisdiction to enforce a federal statute that explicitly directs the secretary of state how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport. and the paper writes in The Justices and Jerusalem

It looks like the decades-long standoff between the Congress and the President over the question of Jerusalem may finally be brought to a head, in a lawsuit brought against the Secretary of State of the United States by — only in America —a nine-year-old boy. The Supreme Court last week brushed aside the objections of Mrs. Clinton, who is worried that Congress may win a say in the Jerusalem question, and agreed to the appeal of the child...The State Department is required to accede to such a request, according to a law, part of the Foreign Relations Authorization Act, passed by Congress in 2002. But when President George W. Bush affixed his signature to the law, he issued a so-called signing statement objecting to that requirement, saying it infringed on his constitutional prerogatives as president. President Obama seems to be taking the same position, as Mrs. Clinton is refusing to carry out the law, even though she was in the Senate when it passed the world’s greatest deliberative body by unanimous consent. It has to be the first time a high-level Democrat is supporting Mr. Bush on one of the signing statements they accused him of using too often.

...the lawyer for Master Zivotofsky, Nathan Lewin...(does) suggest...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.

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 justices instructed] 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...

...it strikes us that the Supreme Court has the opportunity here use the plea of a child to remind us that we are a nation of laws not of men.


Having dealt with this issue in the past, I left this comment there:

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.).


Seth Lipsky adds, in the Wall Street Journal in The Supreme Court and the Jerusalem Debate also highlights other contradictions in the law:


Former Israeli Prime Minister Menachem Begin used to warn against deciding the political status of Jerusalem in the U.S. Congress. But what about at the Supreme Court? It's a pressing question because America's highest court might soon rule on whether, under American law, Jerusalem is or is not part of Israel.

...What makes the case so explosive is not only that it involves the question of Jerusalem, but that it also pits the executive branch against the Congress. In agreeing to hear the case, the court specifically ordered the lawyers to focus on whether the law "impermissibly infringes the President's power to recognize foreign sovereigns." The case also involves presidential signing statements. 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 relevant law is the part of the Foreign Relations Authorization Act of 2002 that deals with "United States policy with respect to Jerusalem as the capital of Israel." The Supreme Court will adjudicate the provision stating that, for "purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."

The bill passed the Senate, of which Mrs. Clinton was then a member, by unanimous consent. In other words, she's now refusing to carry out a law she helped pass.

...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.


In its claim, the State Dept. basically does not wish to get embroiled in who 'owns' Jerusalem - Arabs or Jews? But Israel established sovereignty over Jerusalem, de facto and de jure, and there is no reason why the justices should involve themselves in the State Dept. fears.