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“The argument for Congress,” he continued, “is that Congress, or instance, establishes how to get passports, all those sorts of things. So then this [case] is necessary and proper to their operations of the State Department.”
The signing statement in itself, he said, is not a legal defense, because a signing statement merely expresses the directive wishes of the president—he’s defending his territory, essentially.
Christopher DeMuth, a senior fellow at the American Enterprise Institute, agreed. “Obviously from the circumstances of the case it is about more than a Bush signing statement—Obama must agree with the policy,” he said. It is also DeMuth’s opinion that the president’s constitutional responsibilities involving foreign affairs would likely place this within his purview.
McGinnis stressed that the court will not actually be ruling on the issue of Jerusalem, only on who gets to make that decision.
“It just so happens that it’s also on this rather explosive issue of Jerusalem and Israel,” McGinnis said. But McGinnis acknowledged that if the statute is ruled unconstitutional, that would apply to the law ordering the American embassy to be moved from Tel Aviv to Jerusalem as well. That’s why, he said, “I think people who are eager for congressional power would like this to come up in some other context.”
Hadley Arkes, professor of law and American institutions at Amherst College, wrote in an email that, for those who would want Congress to make the determination, “the problem is that the recognition of foreign governments goes hand in hand with military strategy (recall the decision on whether to recognize the government of [Admiral Jean-Francois] Darlan in North Africa before the North African landings in World War II). And the judges understood at the time that there was no way an unelected judge could get in the way here, taking control of the situation from an elected President and the political branches. What is involved here is a principle that runs deep in the American regime—perhaps the deepest principle, running back to the revolution: that the security of the American people cannot be put into the hands of officials, whether in the Parliament in Westminster, or unelected judges, who bear no direct responsibility to the lives that are at stake.”
If it is ruled a political question, Arkes said, Congress would, as McGinnis indicated, fight it out with the executive branch. And the powers at the disposal of Congress to do so should not be underestimated.
“Congress has levers far more powerful than those available to the courts in enforcing judgments,” he said. “We need only recall the way that Congress withdrew support for the Administration in Cambodia and Vietnam in 1975 and hastened the collapse of the American effort in Indochina. Those powers are no less formidable today.”
But there is certainly a question as to whether there is the will on the part of Congress to attempt to force the president’s hand. If not, then even if the court rules that the two branches must fight it out, the unlikelihood of Menachem getting “Israel” put on the passport persists. If the court rules the statute itself to be unconstitutional, Menachem will lose definitively and the case will set precedent on the issue.
Seth Mandel is a writer specializing in Middle Eastern politics and a Shillman Journalism Fellow at the Horowitz Freedom Center.
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