Jerusalem's Day in Court

The Obama administration again takes a position more Palestinian than that of the Palestinians.

The State Department refuses to comply with a provision in a congressional statute, the Foreign Relations Authorization Act for Fiscal Year 2003, which requires the State Department to record a Jerusalem-born U.S. citizen's place of birth as "Israel" if requested to do so by the citizen or his or her legal guardian. This particular instance of dereliction of the president's constitutional duty to "take care that the laws be faithfully executed" began during the Bush administration and is continuing apace during the Obama administration. An estimated 50,000 individuals, who were born in Jerusalem but are considered American citizens because of their parents' American citizenship, are affected.

Now a case challenging the State Department's refusal to comply with the law is going to the Supreme Court, against the wishes of the Obama administration. The Supreme Court directed the parties in the case of Zivotofsky v. Clinton to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns.” After losing its argument that the Supreme Court should not hear the case at all, Secretary of State Hillary Clinton's State Department filed a brief last month with the Supreme Court sharply attacking the Jerusalem-related portion of the Foreign Relations Authorization Act that Clinton had voted in favor of while serving as New York's junior senator.

The Obama administration brief makes unprecedentedly broad claims of exclusive presidential power. And it also misrepresents the Obama administration's stance toward the final status of Jerusalem as one of neutrality, which it claims would be undermined by the Foreign Relations Authorization Act's passport requirement.

The truth is that the Obama administration is not neutral. It has conflated the Palestinians' claims to "East Jerusalem" with their claims to West Bank territory. By failing to distinguish between the building of Jewish residences within Jerusalem versus settlements on West Bank territory, the Obama administration has sided with the Palestinians against Israel on a critical issue.

As Israeli Prime Minister Benjamin Netanyahu said, "Jerusalem is not a settlement. It's our capital." He has history on his side. Jews have been living in Jerusalem continuously for more than three millennia. In more recent times, they have constituted the largest single group of inhabitants there since at least the 1840s.

Whatever the reason for the Obama administration's embrace of the Palestinians' claims, it should not be entitled to disregard the law on the books concerning the issuance of passports and substitute its own arbitrary edicts.

Contrary to the Obama administration's assertion of exclusive power with regard to the issuance of passports, Congress' constitutional power to regulate the conditions for issuing passports has long been recognized by the Supreme Court. True, the Supreme Court has said in the past that when there is broad rulemaking authority granted in an applicable statute to the executive branch and Congress does not override the consistent administrative construction of the statute by the executive branch, the courts must generally defer to the administrative determination. However, this case involves precisely the opposite situation. The Foreign Relations Authorization Act's Jerusalem provision expressly limits powers that Congress had granted to the executive branch with respect to making rules for the issuance of passports in one specific respect. It said: "For … a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel" (emphasis added). "Shall," not "may," is the operative word.

Congress exercised its constitutional power to regulate the issuance of passports by expressly directing the executive branch to designate Israel on the passport of a U.S. citizen born in Jerusalem if requested to do so. The State Department cannot simply disregard a directive imposed by Congress on the issuance of passports.

This case is especially important at a time when President Obama has effectively endorsed the division of Jerusalem, with so-called East Jerusalem becoming a part of a new Palestine state, in calling for a return to the 1967 lines as the basis for negotiations. An overwhelming majority of Congress supports defensible borders and a united Jerusalem under Israeli sovereignty. They recognize not only Israel's unique historical claim to Jerusalem. They also know from recent history that if Arabs regain control of access to the holy sites of all three major religions, they will most likely defile the holy sites of Judaism and Christianity and will prevent Jews and Christians from freely worshipping in their synagogues and churches located in the old section of the city. This is precisely what happened the last time Arabs controlled the old section of Jerusalem between 1949 and 1967, following Jordan's illegal occupation of "East Jerusalem" that divided the city for the first time in its history. During that occupation, Jordanian Arabs forced the Jewish residents out of the Old City and the neighboring Jewish villages in a frenzy of ethnic cleansing. They desecrated Jewish graves and synagogues. They would not permit Jewish pilgrims to worship at their holy sites, including the Western Wall, which the Arabs used literally as a public pissoir. Those Christian pilgrims who were lucky enough to be permitted to walk the Via Delarosa, or the Way of the Cross, encountered filth and sewage. Christians were subjected to discriminatory laws passed by Jordan, including taking away the right of Christian religious and charitable institutions to acquire real estate in Jerusalem.

When Israel restored Jerusalem as a unified city, ended religious discrimination and ensured freedom of access of the members of all religions to the places sacred to them after defeating Jordan's aggressive push to take over all of Jerusalem during the 1967 Six Day War, Israel established its moral and legal right to claim sovereignty over an undivided Jerusalem.

In representing the United States abroad in diplomatic matters, President Obama has decided to tilt towards the Palestinian position on certain key issues such as their bogus claims to "East Jerusalem" in attempting to resolve the Israeli-Palestinian conflict. However, that does not give him the right to overrule Congress in all matters that the president claims might possibly affect his credibility in asserting that position. If Congress decides to place requirements on the issuance of passports in a law that has duly gone into effect, as is its right to do under the Constitution, the fact that the implementation of these requirements may collaterally embarrass the president is just too bad. The president cannot avoid such embarrassment by failing to carry out the law.

The legal case leading up to the Supreme Court had its origins during the early days of the Bush administration. It stems from an attempt by the mother of a boy born in Jerusalem, who is a U.S. citizen because both of his parents are U.S. citizens, to file an application for a consular report of birth abroad and a United States passport for her son, Menachem Binyamin, listing his place of birth as “Jerusalem, Israel.” The State Department denied her request, despite the fact that he was born in West Jerusalem, which even the Palestinians are not claiming belongs to them. The passport shows only that he was born in Jerusalem.

"If a US citizen is born in Tel Aviv, his passport will designate his place of birth as Israel. But in the case of Jerusalem, the US Consular Department will not give the country of birth as Israel,” said Menachem's father to the Jerusalem Post. "Even though our son was born in Shaare Zedek Hospital, which is in West Jerusalem, the US Consular Department does not recognize it as being Israel.”

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.