Supreme Court Will Rule on Constitutionality of ‘Jerusalem, Israel’

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“Jerusalem will remain the capital of Israel and it must remain undivided,” Barack Obama told the audience at the 2008 annual policy conference of the American Israel Public Affairs Committee (AIPAC).

But now as president, Obama is put in the uncomfortable position of insisting on the enforcement of what has been American policy on the city: that it is not only not recognized as the capital of Israel, but is effectively not considered to be part of Israel at all, as far as official records are concerned. That policy—and its seeming irreconcilability with what presidents say when they are candidates—will now come before the Supreme Court.

Just as surprising, perhaps, is that the government will be up against an 8-year-old boy in the case.

The issue began when the American parents of Menachem Binyamin Zivotofsky, a young boy born in Jerusalem, petitioned the State Department to have Menachem’s passport say “Jerusalem, Israel”—as would be the case if the American government recognized as a political and practical reality that Jerusalem is the capital city of the sovereign state of Israel.

As the Washington Post reported: “ ‘The status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,’ the government said in its brief to the court. It is not one in which the United States has been willing to choose sides.”

But in actuality, the United States has in fact been willing to choose sides. The Palestinians have argued that they should get to sign off on any recognition of the city’s sovereignty. American diplomats prefer this side of the argument, and presidents have as well. In 2002, Congress passed a provision in a larger foreign relations bill that cleared the way for families like the Zivotofskys to request that “Israel” be put on their passports in situations like Menachem’s. President George W. Bush affixed a signing statement reiterating that American policy toward Jerusalem has not changed.

The Supreme Court case then will center on the question of executive versus congressional power on such an issue, according to John O. McGinnis, professor of constitutional law at Northwestern University who served as deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice from 1987-1991.

The court, McGinnis said, will first determine whether it is a political question, i.e. whether the court should decide who should decide such a question. If they rule that it is a political fight between the executive and legislative branches, they will leave them to that fight.

“Congress has its weapons—refusing to confirm people, not funding certain things—to force the executive to comply,” McGinnis said. “The executive can resist.”

In such a case, the plaintiff will “lose” in that the court will not even make the decision, and the president’s standoff with Congress will continue. But the second possibility is that the court will rule that it is, in fact, a constitutional issue and thus that they can decide who is right.

McGinnis laid out the basics of the two arguments. The executive branch will argue that “the Constitution has a clause saying the president shall receive ambassadors. And from that, some might interpret, it’s really up to the president to decide recognition of nations. And you might say well, in deciding recognition of nations you’ve got to decide what those nations are and what their borders are. When you receive an ambassador from somewhere, you decide, well: where is that somewhere?”

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  • JIMMY

    What an idiot you are Seth. He wasn't "UNCOMFORTABLE" in his position. HE LIED THE WHOLE TIME. HE KNEW HE WANTED NOTHING MORE THAN TO STRIP ISRAEL OF HER HOME LAND! DAMN OBUMA AND THE ARABS. JERUSALEM IS AND ALWAYS WILL BE THE CAPITAL!

    • PhillipGaley

      No, "JIMMY": aren't you mistaking best use of the word "uncomfortable"—while Obama will get what he (Soros) wants, still and all, being without much backbone, unavoidably and necessarily, his constrained wheedling and fudging and bridging and simulation on the matter WILL create discomfort?
      I feel like the issues present a fair test; and, while I that, we do pass, if the USA fails to pass it, I won't be surprised, . . .

    • Guest

      Jerusalem has been the capital of the Jewish homeland in king david and Solomon time 3500 hundred years ago, way before Islam was born in the 7th century.

      It is a shame that the US is playing political games with the Jewish people and Israel!

  • jacob

    Good old USA built an embassy in JERUSALEM, ISRAEL but has been affraid of
    hurting Arab ultrasensitive skins by occupying the building due to Arabs totally
    unfounded claim to Jerusalem, as they claim all lands they ever set foot on, as
    is the case with SPAIN, to them El Andalus but now perhaps, the US Supreme
    Court will have to tell the State Department Arabists that as much as they love
    to brownnose all Arabs for reasons of their own, they will have to accept the
    Court's ruling, unless it decides to go wishy-washy, given the preponderance
    of liberals within….

    And as to OBOZO , I'm glad the liberal Jews who fell for his mermaid song of
    "CHANGE" are now shaving on their own beards and will defund his reelection
    campaign and vote Republican instead…

    He foooled you once
    Don't let him do it twice, as it will be shame on you

  • StephenD

    So all the text I've read from thousands of years ago referring to Jerusalem as being "The City of David" and the home of Judaism has been wrong and a cult that began a mere 1400 years ago defines these boundaries for the world now. Is this because everyone is afraid to call things like they are? Are we being "Politically Correct" to the point we would let the ancient historical claims of a people be vanquished so as not to offend the louder and violent ones laying claim to it…no matter how unjust? IS this the cost for “Civilization?” Forcing a lie on the world at the expense of the true owners, Israel, to placate barbarians…I don’t call that civilized.

  • John

    The world doesn't get to call the shots on G-ds land or Jerusalem. It's out of their hands. It's going to be a very entertaining battle when the "world's leaders" come up against our Mighty and Powerful G-d. I guess we'll see who wins that battle and has the final word. Stand firm Israel and in the words given to Joshua, "Be strong and courageous."

  • Alfonz Shmedlap

    W., 05/18/11 common era

    Betcha that the 3 Jewish Supreme Court Justice will all vote against recognizing Jerusalem as the capital city of Israel. Each of them is likely very learned in Reform "Judaism."

    • Guest

      You Bet You!

      I agree!

  • Leah

    How patently absurd to prevent the name of the country. Israel, from appearing on birth certificates of those born in Jerusalem. Whatever the name of the country is at the time of a person's birth is the name that appears on birth certificates everywhere in the world. How dare the U.S. make Jerusalemites into people without a country!

  • aspacia

    Hum, what about Muslims born in East Jerusalem identifying themselves as Israeli when they are not? They could claim all Israeli welfare perks. Just a thought

  • Guest

    Muslims that live in Israel do have all Israeli right including representation in the Israeli Knesset, you ignoramus fool!

    Matter a fact they prefer to stay under Israel's authority rather then under the Palestinian's.

    • Raymond in DC

      Right. Arabs have proved that by "voting with their feet". As the path of the security fence abutting Jerusalem was being laid out, many Arabs of eastern Jerusalem took up residence on the *western* side of the city. And recent polling showed more Arabs in so-called "Arab East Jerusalem" wanted to remain a part of Israel than part of Palestine.