US Supreme Court: Courts to decide whether Congress can recognize Israeli sovereignty over Jerusalem

Israel/PalestineUS Politics
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The Supreme Court (Photo: Andrew Harrer / Bloomberg)

LATimes

WASHINGTON — The Supreme Court weighed into one of the thorniest issues in the Middle East conflict — who has sovereignty over Jerusalem — ruling that courts have the power to decide whether Congress can order that passports for U.S. citizens born there list “Israel” as their birthplace.

The justices, ruling 8 to 1 on Monday, passed the decision back to a lower court. So Menachem Binyamin Zivotofsky, now 9, will have to wait to find out what his passport will look like.

The U.S. has long taken the position that sovereignty over Jerusalem, which Israelis and Palestinians both claim as their capital, must be resolved in negotiations, so the government does not recognize Israeli sovereignty there. But in 2002, Congress passed a bill urging that the U.S. Embassy in Tel Aviv be relocated to Jerusalem and ordering that “Israel” should be listed as the birthplace for those born in the city who request it.

The George W. Bush and Obama administrations argued that the law was unconstitutional because it impinged on the president’s right to conduct foreign policy.

………

Ultimately, the case probably will return to the high court. “I hope this gets resolved favorably so this boy can put Israel on his passport before his bar mitzvah four years from now,” said Nathan Lewin, his lawyer.

Fess up, we all know this is about much more than what Menachem wants for his bar mitzvah. This case is scary. Not only would it set a precedent of sorts regarding Israeli sovereignty over Jerusalem, but it also would play directly into the lobby’s hands if Congress is granted the power to conduct foreign policy. Coming soon – Ileana Ros-Lehtinen as secretary of state.

About Annie Robbins

Annie Robbins is Editor at Large for Mondoweiss, a mother, a human rights activist and a ceramic artist. She lives in the SF bay area. Follow her on Twitter @anniefofani

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35 Responses

  1. Pixel
    March 27, 2012, 1:43 pm

    Come on. Don’t we already know which way this is going to go?

    • Hostage
      March 27, 2012, 8:33 pm

      Don’t we already know which way this is going to go?

      Chief Justice Roberts noted in his opinion that the Supreme Court isn’t a court of first resort and that the judges in the Court below had been split.

      The majority below never reached the merits because they considered it a political question, but Judge Edwards had rejected that argument. That dissenting opinion declared the statute unconstitutional. It cited the earlier line of Supreme Court decisions on the President’s exclusive power to recognize sovereignty over territory. That is probably what the others will conclude on remand.

      http://www.supremecourt.gov/opinions/11pdf/10-699.pdf

  2. Les
    March 27, 2012, 1:58 pm

    How about Debbie Wasserman Schultz as Secretary of State?

  3. Fredblogs
    March 27, 2012, 3:11 pm

    Foreign policy is an area that has always been shared between Congress and the President. The sole power to declare war belongs to Congress (theoretically). Any treaty must be ratified by a 2/3 vote in the Senate. All aid to foreign countries must be approved by the Congress.

    • Woody Tanaka
      March 27, 2012, 4:36 pm

      “Foreign policy is an area that has always been shared between Congress and the President. The sole power to declare war belongs to Congress (theoretically). Any treaty must be ratified by a 2/3 vote in the Senate. All aid to foreign countries must be approved by the Congress.”

      And you’ve pretty much exhausted the extent to which foreign policy is “shared.” None of which is relevant to the ideological point that this poor 9-year old kid’s kooky parents are making.

      • Fredblogs
        March 27, 2012, 7:43 pm

        I think the fact that if any 34 Senators don’t like a treaty it is not binding on the U.S. is a pretty big deal.

        All the Constitution explicitly gives the President is the power to welcome ambassadors.

        I guess it’s up to the Supreme Court to break the tie. Though there is precedent set by Taiwan when the Prez wanted passports from there to say “China” and the Congress wanted them to say “Taiwan”. Guess what, they say “Taiwan”.

      • Hostage
        March 27, 2012, 8:52 pm

        The judges in the lower court were already relying on the idea of shared powers when they invoked the political question doctrine. The Constitutional plan calls for the Congress, acting as a Court of Impeachment, to deal with misdemeanors committed by the President in excess of the Constitution delegation of powers to the Executive.

        The last Supreme Court case which discussed the shared powers of recognition in the two political branches was Oetjen v. Central Leather Company, 246 U.S. 297, 303 (1918). http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=246&invol=297

        The Supreme Court has subsequently ruled that the President has exclusive authority to recognize or not to recognize a foreign state or government and to recognize foreign sovereignty over territory. They have also ruled that the President has the constitutional authority to conclude international agreements related to recognition without authorization from Congress or consent of the Senate. See United States v Belmont, 301, US 324, 57 S Ct. 758, 81 L.Ed. 1134 (1937); or §204 “Recognition and Maintaining Diplomatic Relations: Law of the United States”, Volume 1, page 89; and §303 Reporters Note 11 “Sole Executive Agreements”, Volume 1, page 167, in “The Restatement of the Law (Third) of the Foreign Relations Law of the United States”, American Law Institute, 1986, ISBN 0314301380.

        One of the judges in the lower court, Edwards, rejected the argument that this was a political question that couldn’t be decided by the judicial branch. He cited the line of authorities above (Belmont, Pink, & etc) and declared the statute unconstitutional.

      • Woody Tanaka
        March 28, 2012, 7:34 am

        “I think the fact that if any 34 Senators don’t like a treaty it is not binding on the U.S. is a pretty big deal.”

        But not so big a deal as the fact that the President decides with whom the US will negotiate and enter such a treaty and whether to recognize any entity as a sovereign over any particular land.

        “All the Constitution explicitly gives the President is the power to welcome ambassadors.”

        No, it gives him more. But even if that was all it did give him, that’s precisely the issue here. The act of welcoming ambassadors entails precisely deciding what government constitutes the legitimate government (sovereign) over a peace of land. So all you’ve done here is show that the Constitution puts this power in the President’s hands and that all these Congressmen who passed this vile law want to violate the Constitution in favor of a foreign power.

        “Though there is precedent set by Taiwan when the Prez wanted passports from there to say ‘China’ and the Congress wanted them to say ‘Taiwan’. Guess what, they say ‘Taiwan’.”

        The precedent actually goes the other way. The State Department regulations hold that “Taiwan” goes on the passport, but lets people who are born in Taiwan choose either a city name or “China” if they desire.

        But because the President has adopted the one-China policy and does not recognize the Republic of China (ROC), but recognizes that the People’s Republic of China (PRC) is the sole legitimate sovereign government of China and that Taiwan is part of China, people can’t put “ROC” or “Republic of China” on their US passports.

        That is the equivalent of what these people are seeking to do by putting “Israel” in a place where the US does not recognize Israeli sovereignty.

        And the fact that this move is supported by you Zionists it also raises two things:
        1) whenever the Palestinians move for some advantage, such as seeking entry into the UN, you Zios always say that the US should insist that the issue be resolved by negotiations. But (for once), it goes against you people, such as with the question of sovereignty over al-Quds, you want to prejudge the issue without negotiations. Thus, Zionists are liars or hypocrites.

        2) when there is a dispute between the United States’s position and Israeli government’s position, the supposedly loyal-to-the-US Zios in the Congress and otherwise, flock to support the foreign government’s position over that of their own country. Whether that’s treason or simply Israel-Firstism doesn’t matter. To any patriotic American, it is disgusting.

      • Fredblogs
        March 28, 2012, 1:34 pm

        Actually, the point that 8 members of the Supreme Court made was that the political question doctrine doesn’t apply here. That the lower court screwed up by thinking that it did. The Political question doctrine says that the Supreme Court won’t second guess the other two branches when they are in agreement (or at least not fighting) about foreign policy. It doesn’t say that the courts don’t get to decide Constitutional questions, like who has the power to make certain calls. The Supreme Court is the ultimate arbiter of what the Constitution says. See, Marbury V Madison. The Court decided that this (the Jerusalem/Israel passport) was a Constitutional issue, not a political question. The courts may ultimately find that the President has the authority here, all that the current decision says is that it’s the courts’ call.

      • Woody Tanaka
        March 28, 2012, 1:50 pm

        Fred, that’s not exactly what the political question says, as it can also applies when the other branches disagree, but you are correct in that the decision was a very limited one. And, in fact, given the theory on which the lower courts ruled (i.e., that it was an executive and not legislative call) it is likely that they will simply find the statute unconstitutional under the same reasoning on which they incorrectly attributed to the political question doctrine.

      • Hostage
        March 28, 2012, 10:03 pm

        Actually, the point that 8 members of the Supreme Court made was that the political question doctrine doesn’t apply here. That the lower court screwed up by thinking that it did.

        Zivotofsky’s petition dealt with the statutory question, but the Writ of Certiorari instructed the parties to also be prepared to present arguments on the issue of whether or not the statute impermissibly encroached on the President’s delegated powers.

        None of the Justices were impressed by the opening oral argument from Zivotofsky’s attorney that the Congress was exercising a “Passport power” that has been delegated exclusively to the Congress under the Constitution. They did agree that the Courts below could have ruled on the constitutional questions and remanded the case back to the lower court (where it will probably die a natural death). The Supreme Court has ruled in other cases that recognition of sovereignty over territory is an exclusive right delegated to the President. Nothing in Justice Roberts opinion suggests that the Court is willing to revisit that question. He simply noted that the Supreme Court is not a court of first resort and that the lower courts needed to rule on the merits first.

  4. Kathleen
    March 27, 2012, 3:52 pm

    “Coming soon – Ileana Ros-Lehtinen as secretary of state.” Please say there is nothing to this.

    • Adam Horowitz
      March 27, 2012, 4:34 pm

      It was just a comment about what will happen if the Congress takes on more foreign policy.

      • Kathleen
        March 28, 2012, 11:26 am

        Thought you had some inside information on OBama’s pick for Secretary of State if he wins the race . What a way to get the Florida votes. More terrifying prospect for US foreign policy.

  5. Dan Crowther
    March 27, 2012, 4:53 pm

    Should be interesting to see where Elena “Aharon Barak is my hero” Kagan comes down on this, as she has said “the state of Israel has meant alot to me and my family”- a recusal, perhaps? Nah.

    • Annie Robbins
      March 27, 2012, 4:58 pm

      no, Kagan voted with the majority. as the blockquote mentions it was 8 to1.

      Only Justice Stephen G. Breyer dissented from the ruling that Zivotofsky could pursue the claim in court.

      • Hostage
        March 27, 2012, 9:38 pm

        Only Justice Stephen G. Breyer dissented from the ruling that Zivotofsky could pursue the claim in court.

        Yeah he admitted that this was a case of one political branch playing grab ass with another over the question of how to run a sound foreign policy, and at the most, only inconsequential harm was being done to Zivotofsky.

        That’s the classic definition of a political question that the Courts should leave alone.

      • Fredblogs
        March 28, 2012, 1:43 pm

        Actually, the classic definition of a political question is when a citizen or organization disagrees with foreign policy that is either agreed upon by both executive and legislative branches, or clearly in the bailiwick of one branch or the other. If the two branches are fighting over something that isn’t clearly in the control of one or the other, or if one is trying to usurp power clearly reserved for the other (see ACTA controversy), that isn’t a political question.

      • Hostage
        March 29, 2012, 12:12 am

        Try reading Marbury vs Madison. That’s where the Supreme Court introduced the political question doctrine. Chief Justice John Marshall advanced the proposition that some discretionary actions were left to the other branches and that they are beyond the scope of the power of judicial review. He explained that the Constitution invested the president “with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.” That certainly applies to the discretionary power to accept or reject an ambassador or government as the legal representative of the inhabitants of a territory. Marshall held that political questions submitted to the president “can never be made in this court.”

        The Congress had attempted to amend the Constitution by adopting a statute granting the Supreme Court original jurisdiction over writs of mandamus against US government officials. Marshall declared the law unconstitutional and sent Marbury to the lower courts to seek a remedy for the violation of his rights.

        In M.B.Z v Clinton the Congress may have encroached upon the Presidents discretionary power, by adopting an unconstitutional statute. The Supreme Court does not have original jurisdiction, and the lower court never reached the arguments on the merits. So the matter was remanded back to the lower court.

        FYI, if the Congress decides to impeach the President for not enforcing a statute, there is nothing the Supreme Court can do to prevent them. They are only answerable to their political constituents. That is the classic definition of a political question.

      • Dan Crowther
        March 27, 2012, 9:44 pm

        oh shoot, i totally misread that – i thought it was coming back to the court….cheers annie

      • Annie Robbins
        March 27, 2012, 10:43 pm

        cheers back dan.

      • Fredblogs
        March 28, 2012, 1:38 pm

        @Dan
        It is. Or rather, probably will be. The majority of the Supreme Court said to the lower courts “this isn’t Political question, so decide on the merits”. The lower court will decide on the merits, whoever loses will probably appeal all the way back to the Supreme Court. Whether they take the appeal then is their call. This round was just to decide if the case could be fought on the merits or not.

      • Woody Tanaka
        March 28, 2012, 1:54 pm

        I disagree that it probably will be coming back. The point on which the Sec. of State argued — that this is the executive’s call — is fairly well established. I think that it is rather unlikely that if the lower court affirms that that the Supreme Court will examine it. (Although if it find the statute constitutional, the Supreme Court might take it.)

  6. dbroncos
    March 27, 2012, 9:56 pm

    Not just an insult to Palestinians but to Muslims everywhere. If the US stands alone in recognizing Jerusalem as Israel’s capitol, our leaders will be inviting more scorn, contempt, ridicule and, dare I say it, terrorism aimed at American citizens. This is straight up insanity.

    • Fredblogs
      March 28, 2012, 1:46 pm

      Tempest in a teapot. The Pres will issue a statement that the U.S. doesn’t officially recognize Jerusalem as the capital of Israel. This is just about what goes on some kids’ passports, at the request of their parents. Even if the parents in this case win, the Palestinian-American kids born in Jerusalem can get “Jerusalem” on their passports, not “Israel”.

      • Woody Tanaka
        March 28, 2012, 1:58 pm

        No, it would be a gratuitous insult, because those same Palestinian-American kids can’t get “Palestine” on their passports, regardless of where they were born, for the same reason why “Israel” is inappropriate here: the US Gov’t doesn’t recognize a Palestinian sovereignty, and doesn’t recognize Israeli sovereignty over Jerusalem. To make an exception for the Jewish kid and not for the Palestinian kid would be more evidence (as if any were needed) as to who is the tail and who is the dog. One more indication that the US Government is in the bag for the Zionists.

      • Hostage
        March 28, 2012, 2:36 pm

        Tempest in a teapot. . . . Even if the parents in this case win, the Palestinian-American kids born in Jerusalem can get “Jerusalem” on their passports, not “Israel”.

        Of course, because as one of the Jewish Supreme Court Justices noted:

        the countervailing interests in obtaining judicial resolution of the constitutional determination are not particularly strong ones. Zivotofsky does not assert the kind of interest, e.g., an interest in property or bodily integrity, which courts have traditionally sought to protect.

        In short Zivotofsky could not show that any irreparable harm would come from having Jerusalem on his passport.

        In fact, the United States continued to use Palestine on its passports and claimed that Jerusalem’s status could only be settled through mutual agreement. That policy was modified under pressure from the government of Israel:

        The US was a state party to the Treaty of Lausanne and the Anglo-American Palestine Mandate Convention of 1925 which provided that Ottoman subjects would become citizens of the States, like Palestine, which acquired territory from the Ottoman Empire. The United States established a nationality quota for “Palestine (with Trans-Jordan, proposed British mandate)- 100” See for example
        *The Comprehensive Immigration Law (1924)
        http://www.civics-online.org/library/formatted/texts/immigration1924.htm
        *Proclamation #1872 – Limiting the Immigration of Aliens Into the United States on the Basis of National Origin, March 22, 1929 http://www.presidency.ucsb.edu/ws/index.php?pid=21838

        Resident Aliens who immigrated to the United States from Palestine during the Mandate era were Palestinian nationals and their place of birth remains Palestine under the applicable US laws.

        The Executive branch of the United States government formally recognized Palestine as a separate foreign state in 1932. See the decision of the D.C. Court of Appeals in Kletter v Dulles.
        http://dc.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%2FFDCT%2FDDC%2F1953%2F19530417_0000023.DDC.htm/qx

        In 1995 the State Department published a Memorandum of Conversation between William Crawford Jr. and Mr. Shaul Bar-Haim from the Israeli Embassy (February 7, 1963) regarding Jerusalem. Bar-Haim said “The use of the term “Palestine” is historical fiction; it encourages the Palestine entity concept; its “revived usage enrages” individual Israelis”. Crawford said “It is difficult to see how it “enrages” Israeli opinion. The practice is consistent with the fact that, ”in a de jure sense”, Jerusalem was part of Palestine and has not since become part of any other sovereignty. That it was not a simple matter since there was a ”quota nationality”, in regard to which U.S. legislation and regulation continue to employ the term Palestine. See Foreign Relations of the United States, 1961-1963, Vol. Xviii, Near East, United States. Dept. of State, G.P.O., 1995, ISBN 0160451590, page 341.

      • Fredblogs
        March 29, 2012, 7:05 pm

        Not at all. There is no recognized country of Palestine. You can have “Palestine” on your passport if you were born in Jerusalem before 1948 though.

      • Hostage
        March 29, 2012, 11:46 pm

        Not at all. There is no recognized country of Palestine.

        In fact, it has been recognized by the majority of other existing states and has been admitted as a full member state to one of the UN Organization’s special agencies.

        A smart lawyer could argue that the United States has already extended it several forms of tacit recognition reserved for states. That recognition has continuing legal consequences, e.g. Crawford said “It is difficult to see how it “enrages” Israeli opinion. The practice is consistent with the fact that, ”in a de jure sense”, Jerusalem was part of Palestine and has not since become part of any other sovereignty.

        The Restatement (Third) of the Foreign Relations Law of the United States § 201 Reporter’s Note 3 says “The United States will treat States the territory of which is under foreign military occupation as continuing to exist.” There are only a handful of contracting parties to the Montevideo Convention, including the United States. Unlike diplomatic recognition, Article 6 of that convention says that recognition of statehood is irrevocable.

        The petitioner in Kletter v Dulles claimed that Palestine was not recognized as a state, but the US District Court for the District of Colombia disagreed. It ruled in favor of Secretary of State Dulles and held that the Executive Branch of the US Government had recognized the State of Palestine in 1932.
        http://dc.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%2FFDCT%2FDDC%2F1953%2F19530417_0000023.DDC.htm/qx

        So it could just as easily be argued that the United States has a continuing legal obligation to put Palestine on the passports of all the persons born in Jerusalem, pending a negotiated settlement, e.g.

        7 JUSTICE KAGAN: That might be true, Mr.
        8 Lewin. I think you would have a better argument if this
        9 statute said if you were born in Jerusalem, you can pick
        10 anything you want in your passport; you can pick
        11 Jerusalem, you can pick Israel, or you can pick
        12 Palestine. But the statute in fact doesn’t say that.
        13 It says you can pick Israel.
        14 So, why isn’t that a statement of foreign
        15 policy as to recognition that Jerusalem is the capital
        16 of Israel, as opposed to what you’re characterizing it
        17 as, which is a freedom of — you know, a sort of choice
        18 provision?

        http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-699.pdf

      • Woody Tanaka
        March 30, 2012, 7:55 am

        “Not at all. There is no recognized country of Palestine.”

        You are wrong. The majority of the world’s states recognize the State of Palestine, but (given the legal bribes in the form of “campaign contributions by the Zios) the US doesn’t, in exactly the same way it does not recognize Israeli sovereignty over Jerusalem. So it is exactly the same situation. If some Israel firster wants to force the US to put on the passport something it doesn’t recognize, then everyone should have that right.

        And Fred, we are still waiting for you to provide that link to the oh-so-generous Israeli compensation scheme that the Palestinians supposedly turned down… Can we expect it any time soon???

      • Hostage
        March 30, 2012, 12:57 pm

        So it is exactly the same situation.

        Not really. The United States was one of the Allied Powers that signed the Treaty of Lausanne and the Anglo-American Palestine Mandate Convention that imposed this stupid western paradigm of Palestinian “statehood” and “nationality” on the inhabitants of Ottoman Asia. Then it refused to live-up to the international obligations that flowed from that joint legal undertaking and declared the inhabitants stateless, even when they remained in their homeland. See for example Mutaz Qafisheh, The International Law Foundations of Palestinian Nationality http://elearning.hebron.edu/EPortfolio/artefact/file/download.php?file=636&view=87

      • Woody Tanaka
        March 30, 2012, 2:07 pm

        Hostage,
        None of the things you mention are in any way relevant to the thing I referred to as “it” or “the same situation.”

      • Hostage
        March 30, 2012, 6:11 pm

        Hostage,
        None of the things you mention are in any way relevant to the thing I referred to as “it” or “the same situation.”

        The parent of a child who asked to have Palestine on the child’s passport would not be a nutcase, since Presidents from Calvin Coolidge through Truman recognized Jerusalem as part of the mandated state of Palestine. The FRUS is the official documentary record of major US foreign policy decisions. Mr. Crawford was stating an official policy regarding occupied states when he said that, in a de jure sense, Jerusalem was part of Palestine and it has not become part of any other sovereignty. Under US law the US treats occupied states as continuing to exist.

      • Hostage
        March 30, 2012, 6:22 pm

        P.S. I believe that the memorandum in the FRUS that I cited documents the fact that Israel was complaining about the use of Palestine on US passports (as of 1963).

  7. Talkback
    March 28, 2012, 8:20 am

    IIRC the US always abstained in the Security Council when there was a resolution about Israel illegally changing the status of Jerusalem.

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