As many readers know, the U.S. State Department’s longstanding official policy is to refer to Jerusalem (both East and West) as just “Jerusalem”, and not “Jerusalem, Israel” or “Jerusalem, Palestine” or anything else. Thus, for example, there is the U.S. Consulate in Jerusalem, in contrast to the U.S. Embassy in Tel Aviv, Israel, the U.S. Consulate in Toronto, Canada, etc. The idea here is to avoid taking a public stance on the status of Jerusalem before a final agreement is reached, and thereby to avoid inflaming either side.
But this situation may not last forever. Yesterday, the Supreme Court heard oral arguments in Zivotofsky v. Clinton (aka M.B.Z. v. Clinton), a case that raises the Jerusalem issue as well as deeper constitutional issues about the separation of powers (and let’s face it, the Jerusalem issue isn’t important enough on its own to reach the Supreme Court).
The petitioner, Menachem Binyamin Zivotofsky, is a 9-year-old boy who was born in (West) Jerusalem to American parents. (Ari Z. Zivotofsky can’t be such a common name, so I suspect that the boy’s father is the same person who authored articles on the kashrut of the buffalo, the giraffe, and the turkey, which I had read long before this case, but please correct me if I have the wrong guy.) The respondent, of course, is Secretary of State Hillary Rodham Clinton, who was represented in court by Solicitor General Donald Verrilli.
In accordance with the policy discussed above, Menachem’s U.S. passport lists his place of birth as “Jerusalem”, so his parents sued in federal court, asking to have it changed to “Jerusalem, Israel”. On what basis did they sue? Congress passed a law in 2002 mandating, among many other provisions, that passports should list Jerusalem birthplaces as “Israel” upon request. Lacking a line-item veto and perhaps not wanting to veto the whole bill, President Bush signed it into law, but issued one of his famous “signing statements”, saying in essence that he didn’t intend to enforce the law. So despite the 2002 law, the actual policy remained unchanged, and the Obama administration has continued under the same policy.
The petitioners argued that the president doesn’t have the right to ignore a law passed by Congress. The government argued back that this part of the law was unconstitutional anyway, since recognition of foreign sovereigns has been a prerogative of the executive branch going back to George Washington. The lower courts held that this was a political question, to be resolved by the elected branches, and the judicial branch has no jurisdiction to step in. So the Supreme Court is going to have to resolve this three-way stalemate.
It’s a complicated question any way you slice it, and I’m not sure where I stand. On the one hand, the law seems irresponsible, and if it is enforced, it could have a poisonous effect on American efforts at Middle East diplomacy. On the other hand, it doesn’t seem right that a president should be able to ignore a law he disagrees with (without a court ruling it unconstitutional); Bush should have vetoed the law instead of holding himself above the law with a signing statement.
For a far more detailed exploration of the issues, Lyle Denniston of SCOTUSblog has extensive coverage both before and after yesterday’s argument, and the transcript of the argument is also online. Based on how the justices responded, Denniston seems to think that the government will win on narrow grounds.
What do you think?