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The parents subsequently filed a lawsuit on their son’s behalf against the Secretary of State, seeking an order compelling the State Department to identify his place of birth as “Israel” in the official documents.
The State Department fought back in the lower federal courts. It successfully argued that if “Israel” were to be recorded as the place of birth of a person born in Jerusalem, such a unilateral declaration on an official document issued by the United States government would impact one of the most sensitive issues in the negotiations between Israelis and Palestinians and critically compromise the executive branch’s ability to help further the Middle East peace process.
The federal district and appellate courts considering the case not only bought this argument. They also bought the State Department’s argument that the whole controversy fell under a doctrine that the courts sometimes use to duck politically contentious issues of jurisdictional conflict between the two elected branches of government. When the courts decide to throw a dispute back to the elected branches to sort out between them, they invoke what is known simply as the “political question” escape hatch to say that the political conflict between the elected branches is not appropriate for judicial resolution.
The appellate court deferred to the historic exercise of presidential power in recognizing foreign governments and deciding “which government is sovereign over a particular place.” The legitimacy of this power was derived from the executive branch’s constitutional authority to “receive ambassadors and other public ministers” (U.S. Const., Article II, Sec. 3). The State Department’s decision to record “Jerusalem” (with no reference to Israel) as the place of birth in passports of U.S. citizens born in that city, the appellate court explained, “implements” the president’s “exclusive and unreviewable constitutional power to keep the United States out of the debate over the status of Jerusalem.”
This outcome was not unexpected, given federal courts’ historical reluctance to get embroiled in foreign policy issues. But it makes little sense. Congress has broad powers affecting foreign relations in addition to its appropriation powers. This includes the power to “establish a uniform rule of naturalization” (of foreigners) and to “regulate commerce with foreign nations,” which are far more substantive than the ministerial power of the president to “receive” ambassadors and other public ministers. In this case, the Secretary of State, acting on behalf of the executive branch, chose to disregard an explicit statutory directive mandating that the State Department grant certain privileges to individuals spelled out by Congress within the scope defined by the statute. Congress left no wiggle room for the exercise of discretion by the State Department if an individual like Menachem Binyamin is eligible under the standards laid down by Congress.
Fortunately, Menachem Binyamin’s parents did not give up the fight. The Supreme Court accepted their case for review.
In their brief to the U.S. Supreme Court, the parents argued that the U.S. State Department’s policy “discriminates against supporters of Israel who would like personally, or through their children, to be identified with the State of Israel.” For example, they argued that their son is being treated more harshly than Americans born in Jerusalem or anywhere else in Israel before 1948 who can request that their country of birth be listed as “Palestine” on U.S. passports and other government documents.
Moreover, Congress in 1994 enacted a virtually identical statute regarding Taiwan over the vehement objections of China, which claimed 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,” the parents pointed out in their court filings.
Secretary of State Hillary Clinton’s State Department brief urged the Supreme Court not to get involved in this type of dispute over a “political question” between the two elected branches. In case the Supreme Court does decide to address the substance of the issue, the State Department brief also challenged the constitutionality of the law’s provisions on Jerusalem.
By requiring the State Department to associate Jerusalem with Israel on an official government document such as a passport, Clinton’s State Department argued in its brief, the law would unconstitutionally force the executive branch into acknowledging Israel’s sovereignty over Jerusalem in direct contradiction to the executive branch’s current foreign policy decision to supposedly remain neutral on the final status of Jerusalem.
As mentioned above, the Obama administration’s position is not neutral on the Jerusalem issue. It tilts towards the Palestinian claim to “East Jerusalem.” Moreover, the president’s representation of the United States in articulating U.S. foreign policy should not entitle him to push Congress out of the way in regulating an area such as the issuance of passports, which the Supreme Court has previously recognized is within its constitutional authority to regulate.
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.
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