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

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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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  • 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.