Jerusalem’s Day in Court

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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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  • ApolloSpeaks


    Click my name to read this widely linked piece at my NUMBER ONE blog at

  • jacob

    Now that this issue and similar others are at the Supreme Court , the attacks on
    Justice THOMAS make sense…

    With Justice Thomas out of the way, the Court's liberal majority can cater wirh
    impunity to OBAMA, HOLDER' and the rest of this "administration" whims…

    RIGHT ??????.

  • Flipside

    1) The President swore to uphold the law. This is an Act.
    2) Language giving Jerusalem has no place in an appropriations act.
    3) It is not 2003.

  • Zinnia2

    this administration has shown that it does not recognize the borders of ANY sovereign nation – also, the current wh resident has called himself a global citizen…

  • Linda Rivera

    Jew-hater ruling elites conspire with Islam to steal the Holy Land. Jews are HATED for working hard, living and breathing PEACEFULLY in Judea, Samaria and Jerusalem, the famous BIBLICAL Jewish homeland.

    For 4,000 years, Israel has been highly cherished by Jews, and highly cherished by Christians for 2,000 years. Israel is the ONLY place on earth where ALL of our famous Jewish and Christian holy sites are located.

    The eternal Jewish Holy City of Jerusalem, the City of G-D, the place of the Temple Mount, the site of the First and Second Temples is the holiest place on earth for Jews and Christians.

    At the Temple Mount in Jerusalem, Muslims have vandalized and massively destroyed precious and unique Temple remains that can NEVER be replaced.

    Thousands of years ago, G-D prophesied in the Bible of this present time-the hate and enmity towards Israel. In the future, the Bible declares that G-D will give great victory and Israel's light will shine forever!

    • Rev. Roy Trepanier

      Amen to that, Linda. I would only add one word to your dissertation, and that word is (near). In the (near) future….God will……
      There is a confluence of events transpiring globally today that is undeniably a precursor of something Supernatural. From the "Arab Spring"..days of rage…"Why do the heathen rage and plot a vain thing?" (Psalm 2:1), to the return of Israel's ancient enemy, Egypt, to the resurgence of the Ottoman Empire of Assad's Syria, to the return of the Czar Master Putin, to the inevitable momentary collapse of the Euro and the European Union States, to the USA's upcoming implosion, to China's…..blah, blah…blah ad infintum, (near) may not be decriptive enough.
      The GOOD news though is that God is still in charge, and for those that KNOW Him, (I said "those that KNOW Him", ), all will be well. Maranatha…………
      Rev. Roy…<><

  • Roland

    The State Department has always tilted toward the Arabs. I thought things might get better under Hilarious Clinton's leadership but, alas, no. Rember this next time she runs for office.

    • rulierose

      Roland you are absolutely right, both about State and about HRC. I very much doubt she could win election in NY again after the way she's treated Israel since becoming SecState.

  • maturin20

    People care too much about filling out forms correctly.

  • Barry

    Yes, let's hope that the Supreme Court does, indeed, surprise us. Presidents come and go, but a law such as this one, dealing with the matter of passports, and their listing of 'place of birth', should be established for the long-term. President Obama's political maneuvering should not alter this man's wishes to have his place of birth listed as Jerusalem, if a previously established act of congress grants him the right to do so.

    Thanks for the article.