Israel lobby stakes claim for Jerusalem at Supreme Court, but Kagan isn’t buying

US Politics
on 81 Comments

While everyone’s focused on election day another big story is going on at the Supreme Court. Oral arguments over Zivotofsky v. Kerry began yesterday, in a case that could potentially decide U.S. policy over the sovereignty of Jerusalem, the West Bank as well as the entirety of Occupied Palestine. Under a deceptive guise, ostensibly “created to give individuals the right to self-identify,” the case brought before the court, pushed by stalwarts of the Israel lobby, including but not limited to the Zionist Organization of AmericaAmerican Jewish Committee, the Anti Defamation League,  and the Louis D. Brandeis Centerseeks a ruling that essentially grants Congress the authority to bypass the executive branch on Jerusalem, thereby stripping the president of the power to conduct foreign affairs. And yes, in Congress, the lobby rules.

Here’s background on Zivotofsky v. Kerry from Scotus blog’s editor-reporter Amy Howe (link):

Since 1948, the United States has declined to recognize any country as having sovereignty over the holy city of Jerusalem.  But in 2002, Congress passed a law that instructed the Secretary of State, upon request, to list the birthplace of a U.S. citizen born in Jerusalem as “Israel” on his passport.  President George W. Bush signed the law, but at the same time he issued a statement – known as a “signing statement” – in which he protested that the law “interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the . . . executive branch.”

The child at the heart of today’s case, Menachem Zivotofsky, was born in Jerusalem in 2002 to U.S.-citizen parents.  When his parents applied for a passport for him, they asked – consistent with the then-new law — to have his place of birth be designated as “Israel” on his passport.  When the State Department refused, the family brought this lawsuit, which has already been to the Supreme Court once before.  Two years ago, the Justices decided that the lawsuit could continue; it was not, they concluded, the kind of “political question” that courts should leave to the president and Congress.

The case went back to the lower court, which ruled in the government’s favor.  It agreed with the government that only the president has the power to recognize foreign countries.  And the law ran afoul of that power, it concluded, because it tried to change the government’s long-standing policy of not recognizing any country as having sovereignty over Jerusalem.

Described as both “a proxy war for U.S. foreign policy toward Israel“, a “foreign policy minefield,” and “a massive smack down between the congressional and executive branches” the implications of the Supreme Court ruling could have lasting repercussions not just to US politics, our national interest, and separation of powers, but damage to the Middle East could be devastating.

Obama’s Solicitor General, Don Verrilli, argued the status of Jerusalem is “the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades” and suggested US credibility could hinge on the outcome:

[T]he fact of the matter is that the parties in the region, the nations in the region, and frankly people around the world and governments around the world scrutinize every word that comes out of the United States Government and every action that the United States Government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution.

Zivotofsky’s lawyer, Alyza Lewin, said these claims are a “non issue.”

Supreme Court Justice Elena Kagan cut to the heart of the matter:

JUSTICE KAGAN: I take it, Ms. Lewin, when you say the West Bank, I take it you think that Congress could pass the identical statute with respect to a child born in Hebron, say.

MS. LEWIN:  Saying that ­­–

JUSTICE KAGAN:  That that, too, is Israel?

MS. LEWIN:  Correct.

JUSTICE KAGAN:  Yes.  Okay.

Hebron? Today Jerusalem, tomorrow the West Bank.

From the onset the Justice’s views were sharply split with Chief Justice Roberts along with Alito and Scalia appearing to back Congress. Justice Scalia noted that the State Department can decide who to recognize and be friendly with and Congress can do the same­­ “and the fact that the State Department doesn’t like the fact that it makes the Palestinians angry is irrelevant”.

Lewin said the president’s authority to enter into executive agreements to resolve foreign claims was neither explicit nor exclusive  nor could agreements entered into by the executive branch “contradict or run counter to the express will of Congress.” So laws passed by Congress “trump the president”.  She also characterized the Solicitor General as having “greatly exaggerated” the potential negative consequences. Slate’s Dahlia Lithwick captures the moment:

Lewin closes by saying that the negative international consequences Verrilli warned of are “grossly exaggerated.” Kagan’s jaw literally drops. “Can I say,” Kagan stops her, “that this seems a particularly unfortunate week to be making this kind of ‘oh, it’s no big deal’ argument. I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn’t it?”

You can read yesterday’s oral arguments in their entirety at SupremeCourt.gov (PDF)

Muslims pray outside the gates of the Noble Sanctuary prevented entrance by Israeli forces.  Jerusalem,  November 3, 2014 (Photo: Mohammed Qzzaz)

Jerusalem, Muslim worshippers pray outside the gates of the Noble Sanctuary, closed off and guarded by Israeli forces October 31, 2014 (Photo: Mohammed Qzzaz)

To be sure, we’ll be following up on the outcome.

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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81 Responses

  1. just
    November 4, 2014, 4:47 pm

    huge thanks for highlighting this.

    The Zivotofskys and their consorts are ruthless and dangerous. It’s their 2nd time before the court. This kid has spent his life with his parents fighting for another country. It’s more than sickening.

    I’ve said it before wrt many issues, but this dual nationality/allegiance quagmire needs to go.

  2. pabelmont
    November 4, 2014, 5:07 pm

    It is not only passports which are government papers wherein (as it might seem) government foreign policy is involved in this matter of “where was someone born” or, as it is sometimes asked, “what was someone’s nationality”. I think it is the same question, but who knows?

    When my soon-to-be-wife and i applied at city hall, San Francisco, for a marriage license, the application form required us to state bride’s father’s “nationality” or “birth place” (it is too long ago for me to remember the precise question).

    Her father had been born in Ramallah in 1985 and we tried “Ottoman Empire” as his nationality. No good (presumably because not on a list of OK-place-names). So then we tried “Palestine”. No good. This was late June 1967, and we could have tried “Israel”, but that didn’t suit us. So we said, “Jordan” and we were “in like Flynn.” So where did this list of place names come from? US Fed? somebody in California division of vital statistics? No idea. (No one consulted the supreme Court on that one.)

  3. Daniel Rich
    November 4, 2014, 6:07 pm

    If Supreme Court judge Clarence Thomas has to handle a case about allowing Haitian boat refugees to enter the US and claims we should do so, because ‘they were on the way to these shores’ in the first place, ‘but got off the boat a few islands short of US mainland.’ the howls of ‘biased judgement’ and the demands to put ‘an assassin’s bullet where it belongs, would fill the airwaves ’till kingdom come’.

    Kagan is the first justice appointed without any prior experience as a judge since William Rehnquist in 1972.[71][72][73] She is the fourth female justice in the Court’s history (and, for the first time, part of a Court with three female justices) and the eighth Jewish justice,[2] making three of the nine current justices Jewish – LINK to Wiki.

    • Annie Robbins
      November 4, 2014, 7:17 pm

      sotomayor packed some serious punches too, i was just incapable of paraphrasing her, but at one point she claimed the implication of lewin’s claim was “a lie”. i recommend people read the oral arguments in their entirety provided at the pdf at the base.

      lewin had referenced a footnote in some “jerusalem embassy act” (from 95) claiming the waiver embedded, although it was a waiver, set precedence here was a ‘dispute’ over US policy position over jerusalem (which is set by the state department!) or something.

      from my notes:

      Lewin “the individual who has self identified” to which Sotomayor shot back “But the individual is not the one issuing the passport. It’s the government. The document says. This is a diplomatic exchange between sovereigns.”

      iow, lewin wants the individual gets to decide how the US defines the place the individual was born? sheesh! besides, a baby is not even old enough to friggin “self identify”. it all makes my head spin.

      it’s this chipping away year by year of the lobbies handiwork embedded in our legislation and now trying to force the executive branch..argh! so frustrating.

      • Daniel Rich
        November 5, 2014, 12:03 am

        @ Annie Robbins,

        Q; argh! so frustrating.

        R: Hence my admiration for your tireless efforts to see to it that justice is not turned into a commodity that can be wiped under the rug of one PAC or another.

        Really, kudos to you.

        :[]:

      • Mooser
        November 5, 2014, 11:07 am

        ” a baby is not even old enough to friggin “self identify”.”

        Well, for a week or less, anyway.

  4. Kay24
    November 4, 2014, 7:08 pm

    Almost every day, we learn just how devious Israel can be. There is no doubt there are pro Israel elements behind this, who have no qualms about using a little kid, just to push for what they have been denied – to call Jerusalem theirs. These are blatant moves to steal what international laws have stated they have no right to, and they are salivating at the chance to get the US support them arrogantly take this area for their own, and they have tried every dirty zionist trick in the book to make it happen. They have kept building illegal settlements, built universities, and most probably synagogues, over there, just to keep claiming that piece of property.

    • Marnie
      November 5, 2014, 1:30 am

      Israeli children have very specific uses – as cannon fodder literally and figuratively and to make more israeli children. Sure there are pro-israeli elements behind, in front of, to the left and right of this. What a waste of time, going to the supreme court not once but twice (money talks, bullshit goes to Judge Judy)?

      • Annie Robbins
        November 5, 2014, 4:54 am

        What a waste of time, going to the supreme court not once but twice

        if they win, they won’t be thinking of it as a waste of time. i’m sure this battle is not being fought because of the passport of a child. the stakes are high here. very very high.

        if it passes and the lobby congress forces the hand of the president on jerusalem and then proceeds in moving our embassy to jerusalem it will deservedly signal a drastic fall of stature for the US, potentially unrecoverable.

      • Kay24
        November 5, 2014, 7:15 am

        Annie is right, chances are very high this may pass, and the US will find itself in a difficult situation in the international arena. This is indeed MORE than a child’s passport.
        It is all for the motherland.

      • MRW
        November 5, 2014, 4:15 pm

        It’s even more than that, annie. If this right falls to Congress, think of the ramifications for people wanting their passports to say they live in X and not Y and their ability to pay their congressmen to help them.

        Our President is not only the Head of Government, like a Netanyahu or Stephen Harper, but he is the Head of State, like Peres was or the Queen. Very few countries have that.

        If the justices rule in Lewin’s favor, it makes our Head of State a political position, and not a sovereign one. Sotomayor is 100% right on this. Kagan certainly gets it.

        This is ripping up our constitution. Foreign policy is the purview of the head of state, and our constitution states that in no uncertain terms.

        I wish I knew how/where to write to the SC, or if we even can. Do letters get through?

      • Annie Robbins
        November 5, 2014, 5:06 pm

        yes i know mrw, that is why i wrote

        the implications of the Supreme Court ruling could have lasting repercussions not just to US politics, our national interest, and separation of powers, but damage to the Middle East could be devastating.

        embedded to http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution#Executive_power

        also, where it now reads:

        essentially grants Congress the authority to bypass the executive branch on Jerusalem, thereby stripping the president of the power to conduct foreign affairs.

        i originally wrote:

        and strip the president of that power thereby allowing Congress, where the lobby rules, unilaterally decisions currently under the purview of the executive branch.

        but my editors thought it was a little too wordy. anyway, yes i get it. and i am sure the court gets it too.

        really freaky huh.

      • MRW
        November 5, 2014, 5:01 pm

        Just thought of another one. What if some Taiwanese insist on have Taipei, China listed on their passports?

      • MRW
        November 5, 2014, 5:26 pm

        yeah, i know you know, annie. ;-) and it’s more than a little freaky. mo-fos.

      • Annie Robbins
        November 5, 2014, 6:55 pm

        ;)

        Just thought of another one. What if some Taiwanese insist on have Taipei, China listed on their passports? –

        open the pdf and read the oral arguments. they talk about that.

      • Frankie P
        November 6, 2014, 10:43 pm

        @MRW

        Just to let you know that here in Taiwan, an American citizen’s parents can choose what to put on the US passport. I opted for “Taiwan”, and I don’t think it will cause my dual-national (US / ROC) children problems when and if they visit China. I believe that Taiwan, China was an option as well, but our politics don’t run that way!

        Frankie P

  5. just
    November 4, 2014, 7:20 pm

    for all the folks that give up their right and responsibility to vote, this is WHY it matters, if nothing else does. SCOTUS matters in our everyday lives.

    I happen to care deeply about our legendary failures called our foreign policy, but there’s no denying that things are ‘better’ in many ways under Obama than under Dubya and the neocons. I have some hope left for this President.

    it drives me crazy that people don’t vote! so many died and fought and struggled to give us that precious right– some even want to take it away and disenfranchise US citizens today. if you don’t vote, I turn a deaf ear to your complaints. do something to change the status quo, hold your nose if you must, but vote.

  6. Sulphurdunn
    November 4, 2014, 8:12 pm

    Are Zionists mad? Is there nothing they are unwilling to corrupt and subvert to achieve their ends? Who do they think they are? Do they honestly believe they can dictate American foreign policy indefinitely by bribing and bullying congress with money and mass media? When the inevitable backlash finally arrives, will it have been worth it to them?

    • Annie Robbins
      November 4, 2014, 9:14 pm

      Do they honestly believe they can dictate American foreign policy indefinitely by bribing and bullying congress with money and mass media?

      that’s sort of a no brainer. clearly they do. the question we need to be focused on is when will the masses say stop, demand accountability and justice.

      • bilal a
        November 4, 2014, 11:21 pm

        Not just the masses. How many here will vote for hilary ? Curious if Phil Weiss will make an endorsement.

        Hillary Clinton Raises Record $2.1M At Jeffrey Katzenberg Co-Hosted Hollywood Fundraiser
        http://deadline.com/2014/10/hillary-clinton-fundraiser-midterms-jeffrey-katzenberg-steven-spielberg-host-855911/

      • MHughes976
        November 5, 2014, 4:54 am

        Presumably the ‘dictation’ will now, with the massive Republican majorities, be even easier – ever less like a dictatorship, ever more like a love-in?
        Democracy is a funny thing. ‘Throw the rascals out!’ we cry – yet the rascals were only there because we put them there, sometimes amid great enthusiasm, a few short years ago.

      • Annie Robbins
        November 5, 2014, 5:09 am

        funny you should mention hillary bilal, i just tweeted this a couple hrs ago:

      • Walid
        November 5, 2014, 5:45 am

        Annie, I don’t like Hillary either but at least she’s honest and up front with her Israel-firster vocation. Much more than Obama that had everybody fooled. Is there any potential candidate from either party that wouldn’t put the interests of the US ahead of those of Israel?

      • Walid
        November 5, 2014, 5:47 am

        … interest of Israel ahead of those of the US (of course).

      • Marnie
        November 5, 2014, 6:27 am

        Here’s hoping there are a lot of americans a whole lot smarter than I am and can keep up with you Annie and others here. Open mouth insert feet.

      • Kay24
        November 5, 2014, 7:20 am

        I have stopped voting, because I cannot find any candidates who will put the interests of the US above Israel, and who will not be bought by an alien nation. Hillary is no different, she kisses the feet of the zionists, just so she can win. I am tired of hearing them all proclaim their love and devotion to Israel, and support it when it displays it’s brutality against unarmed civilians.
        Whether it is Menendez, or Corey Booker, they have disappointed me by their shameful support of Israel, by their actions, even going against Obama, when Israel says “jump”.

      • lysias
        November 5, 2014, 10:39 am

        I vote, but I vote for third-party candidates pretty much all the time there’s one on the ballot. My hope is that, if enough people do that, eventually the duopoly of the two major parties may be broken.

      • Mooser
        November 5, 2014, 11:20 am

        “Who do they think they are?”

        If I asked myself that question (which I sure as hell wouldn’t do!) and tried to come up with an answer which satisfied my almost neurotic sensitivity to anti-Semitism and anti-Jewish stereotypes, I might say (might!) that they sure as hell remind me of people who think they are a hereditary nobility and/or natural aristocracy. Certainly not a hard thing to convince people to convince themselves of.

      • lysias
        November 5, 2014, 11:47 am

        An aristocracy with no refinement, tradition of noblesse oblige, or sense of duty to serve in the military (at least when it’s not the Israeli military).

      • MRW
        November 5, 2014, 4:57 pm

        Walid November 5, 2014, 5:45 am
        Annie, I don’t like Hillary either but at least she’s honest and up front with her Israel-firster vocation.

        The danger with Hillary is that she will institute Bill’s economic ideas and we’ll have another Financial Crisis. Clinton’s surplus was the cause. When you have a sovereign non-convertible fiat currency like ours, or Canada’s, the government should never have a surplus nor try to balance its budget: it impoverishes the people. (govt surplus = private sector deficit). Fiat currency countries do not need revenue before they can spend because they issue their own currency. How does someone, or an entity, require from someone else that which they create themselves? And there ain’t no factory in China manufacturing dollars that we borrow, that’s an inanity.

        But state and local govts need revenue. They can’t issue their own money; they’re like Italy or Spain or Greece who gave up their sovereign currencies for the Euro. State and local govts need to earn income. And that was the problem with Bill; he brought the Arkansas edict to balance the budget to DC and, delayed by the dotcom and housing bubbles, caused the Financial Crisis of 2008, along with the mortgage CEO criminality Geithner refused to prosecute as NYC Fed Head.

        In our 238-year history we have either balanced the budget, or run a surplus, seven times at the federal level. First time? Andrew Jackson, 1836. Each time was followed by a depression. As Bloomberg crowed about the Clinton surplus 14 years ago, we haven’t had a surplus like this since 1926-1929. No shit, sherlock.

        So who does Obama hire? The Cllinton surplus architect (Jack Lew), and he wonders why the recovery is at 1-2%.

        So. No. No Hillary.

      • Shingo
        November 5, 2014, 5:43 pm

        have another Financial Crisis. Clinton’s surplus was the cause. When you have a sovereign non-convertible fiat currency like ours, or Canada’s, the government should never have a surplus nor try to balance its budget: it impoverishes the people. (govt surplus = private sector deficit). Fiat currency countries do not need revenue before they can spend because they issue their own currency.

        Sorry MRW, but that’s just financial gobbledegook.

        A surplus is can only be a nett positive for any country. What you are confusing is clever bookkeeping for finical reality. Clinton didn’t balance the budget. Yes, he was there when it happened. But the record shows that was about the extent of his contribution.

        Clinton fought Republicans every inch of the way in balancing the budget in 1995.

        Spending revenuw that does not exist is equally damaging as it created inflation.

      • Mooser
        November 5, 2014, 6:13 pm

        “An aristocracy with no refinement, tradition of noblesse oblige, or sense of duty to serve in the military”

        I don’t quite agree. I think they attribute those qualities to themselves just as often, if not more often, than any other aristocracy did.

      • MRW
        November 6, 2014, 6:13 am

        Sorry MRW, but that’s just financial gobbledegook.

        A surplus is can only be a nett positive for any country. What you are confusing is clever bookkeeping for finical reality. Clinton didn’t balance the budget. Yes, he was there when it happened. But the record shows that was about the extent of his contribution. […] Spending revenuw that does not exist is equally damaging as it created inflation.

        I’m not going to get into a pissing match with you, Shingo, ;-) this is neither the proper place nor venue. But I want to go on record that this is not financial gobbledegook. It’s macroeconomics, counterintuitive, and how it works is discussed in Frank N. Newman’s (2013-04-22) Freedom from National Debt/i>. He was the Deputy Treasurer of the US Treasury under Clinton 1993-1995. Nobody at Treasury or in Congress calls the IRS to see how much is in the kitty before spending. Congressionally appropriated spending, which comes first, is balanced by the public sale or auction of treasury securities, not tax revenue. The US is not revenue-constrained.

        Under the US system, tax revenue is a thermostat for the economy. You lower them in a cold economy, and increase when the economy is running red hot and there’s a danger of inflation which results (classically) from too much money chasing too few goods.

        As luck would it, I have Marriner Eccles’s “Memorandum for Richmond meeting—May 19, 1938” on my desk right now. Eccles was the brilliant first Federal Reserve chairman and the (Republican + Mormon) architect of FDR’s New Deal. Can’t give you a link, I printed it out from the St. Louis Fed’s archives. In it, he discusses how deficit-spending and taxes are used to maintain a proper level of production in the economy, which our current yahoos (D & R) don’t know. That’s why we have financial capitalism and the widening maw between the rich and poor in this country.

      • MRW
        November 6, 2014, 6:18 am

        Can the mods please fix the improper html in my “MRW November 6, 2014, 6:13 am” post?

        The offending part is book title in my first paragraph: … National Debt/i>

        You need to add a “<" to complete the italics.

      • MRW
        November 6, 2014, 12:48 pm

        Shingo, here’s a visual of what it’s become, but when you look at the 1991-2000 sector, remember that it came about as a result of the private sector going into heavy debt (re-fi-ing their houses to make ends meet) and the chickens came home to roost under Bush and Obama:
        http://mic.com/articles/99798/one-chart-about-income-inequality-that-will-make-your-blood-boil

        This is a chart of what I’m talking about, however inartfully.

      • Shingo
        November 6, 2014, 7:10 pm

        Thanks MRW.

        Will definitely read.

      • Keith
        November 6, 2014, 4:57 pm

        SHINGO- “A surplus is can only be a nett positive for any country.”

        Apparently you are unaware that in the global financial system money is CREATED through bank credit (debt). Reducing and finally eliminating the total debt (public and private) would effectively reduce and eventually eliminate the entire money supply, hardly a recipe for “let the good times roll.”

        As an aside, historically the public and private debt required a growing economy to generate the demand for new loans to service the old loans. This growth is no longer sustainable, hence, privatizations are required to generate the demand for new loans. Neoliberal globalization is, in my view, a direct consequence of the nature of our private, debt based financial system.

        The entire global financial system will soon be restructured (or else), but not before the banks and oligarchs have plundered as much as possible. With the Republican victories in the mid-term elections, Obama will now have all the excuse he needs to go completely berserk in starting more wars and wrecking economic havoc on the American people. I predict that the final two years of the Obama presidency will be a galloping disaster.

      • Keith
        November 6, 2014, 5:06 pm

        ANNIE- “the question we need to be focused on is when will the masses say stop, demand accountability and justice.”

        The only way to do that in a democracy is to vote the Republican and Democrat rascals out by voting Third party or independent. And when will that happen? Probably some time after Hell freezes over.

      • MRW
        November 7, 2014, 1:15 am

        @Shingo, my final word on the topic on this thread, promise.

        Shingo November 6, 2014, 7:10 pm
        Thanks MRW.

        Will definitely read.

        Actually, Shingo, you just need to glance at it. ;-) It’s a chart.

        But if you are willing to read something, here are 3.25 pages that are clear, concise, and really informative. Well worth your time over morning coffee, written by Dr. Pavlina Tcherneva who teaches Economics at Bard College, and is a fellow at the Levy Economics Institute at Bard College.
        http://pavlina-tcherneva.net/2-key-charts.pdf

        It’s called “The 2 important charts everyone should see.” (One notable point: the “Capital Account” in the chart on the bottom of page 2 is the Foreign Sector. That should help make the info clearer.]

  7. DoubleStandard
    November 5, 2014, 12:46 am

    There are complex legal issues at play here – – not everything revolves entirely around Israel Palestine. Wouldn’t expect mondoweiss yokels to be sensitive to that I guess. IP may have precipitated the case, but the justices are not deciding a political question though their opinion may have political ramifications.

    • just
      November 5, 2014, 2:19 am

      au contraire, DS.

      It’s not ‘complex’ at all. Even this ‘yokel’ understands it. Your comment is, quite frankly, useless.

      • DoubleStandard
        November 5, 2014, 2:56 am

        Unlikely you understand constitutional law lol if you can’t understand something as simple as Israel Palestine.

        But that notwithstanding, it’s not terribly clear that Congress’ instructing the State department to record Israel upon request is a matter of foreign policy.

      • just
        November 5, 2014, 12:58 pm

        DS– does your country have a Constitution?

        “Unlikely you understand constitutional law lol if you can’t understand something as simple as Israel Palestine.”

        Do elaborate on how ‘simple’ this is!

      • Citizen
        November 5, 2014, 3:05 pm

        SCOTUS could have decided not to take on the case simply by characterizing it as “a political question.”

    • bintbiba
      November 5, 2014, 6:18 am

      Yokel ..and proud !!

    • Shingo
      November 5, 2014, 2:56 pm

      Unlikely you understand constitutional law lol if you can’t understand something as simple as Israel Palestine.

      In which case you should shut up and listen DS< seeing as you clearly don't have any understanding.

    • MRW
      November 5, 2014, 5:23 pm

      but the justices are not deciding a political question

      But Lewin is asking them to. She is asking the court to make the issue of foreign policy, which is a sovereign issue under the purview of the President of the USA as Head of State and the Executive branch, a political issue to be decided in our Legislative or political branch. Further, she is asking to change our Constitution.

      We yokels don’t like it.

      • DoubleStandard
        November 6, 2014, 9:56 am

        Depends on where the power to issue passports derives from. If it falls under the naturalization and border control powers of Congress, than the law may be constitutional. It’s not so clear that passports are an issue of foreign — and not domestic — policy.

        If it were so simple the Court would have affirmed the judgment below and not wasted its time with it. 4 justices obviously feel that it raises legitimate constitutional issues.

        My prediction is 6-3 affirming the judgment.

      • Shingo
        November 6, 2014, 5:39 pm

        If it were so simple the Court would have affirmed the judgment below and not wasted its time with it. 4 justices obviously feel that it raises legitimate constitutional issues.

        Not necessarily. The Supreme Court is clearly sensitive to political issues, not to mention big money. DIsmissing the case outright could have been politically dangerous, so they are treading carefully and pretending to give the issue careful consideration.

      • MRW
        November 6, 2014, 12:27 pm

        DoubleStandard November 6, 2014, 9:56 am
        Depends on where the power to issue passports derives from. If it falls under the naturalization and border control powers of Congress, than the law may be constitutional. It’s not so clear that passports are an issue of foreign — and not domestic — policy.

        Congress doesn’t have naturalization and border control powers; it has the power to create laws. The power to issue passports currently rests with the Dept of State, part of the the executive branch.

    • pineywoodslim
      November 7, 2014, 1:12 am

      I’m an attorney, DoubleStandard, and know enough about con law to know that the legal issues presented, at least on their face, are not particularly complicated.

  8. talknic
    November 5, 2014, 3:16 am

    By adopting the legal custom of having an agreement or treaty with the citizens of the territory to be annexed, or their representatives (Texas, Alaska, Hawaii et al), the US was instrumental in the legal custom eventually passing into Customary International Law, codified in Article 11 of the Montevideo Convention on the Rights and Duties of States 1933, later adopted into the UN Charter.

    Consequently we see the phrase “It is inadmissible to acquire territory by war (or force)” in so many UN/UNSC resolutions regarding the Question of Palestine and requiring Israel to withdraw from all non-Israeli territories, incl the Golan and Jerusalem.

    Were it to recognize any territories acquired by by Israel through any aggressive or defensive war or any type of force or coercion, the US would be in breach of the Montevideo Convention on the Rights and Duties of States 1933 and the UN Charter 1945 ARTICLE 11

    The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure.

    The US recognized Israel as it asked to be recognized, 15th May 1948. The US has never recognized any further territories as Israeli. No further territories have ever been legally annexed to the State of Israel by agreement with the citizens of the territories to be annexed, sans illegal settlers and nationals of the annexing party.

    • Mooser
      November 5, 2014, 6:19 pm

      ” No further territories have ever been legally annexed to the State of Israel by agreement with the citizens of the territories to be annexed, sans illegal settlers and nationals of the annexing party.”

      But, but, but, how can that be? Israel has sold land, lots of land, in these areas, and is still selling land in the occupied territory today. Apart from the theft from the Palestinians, (which is, of course, the primary evil) isn’t that sort of unethical, to sell land you don’t have well, we call it “clear title” to? Is that something you should do to a lantsmann?

      • talknic
        November 5, 2014, 7:18 pm

        @ Mooser “…but, but, etc”

        that’s not how to spell butt…

        But, but,but, black is white, war is peace, after is before! It’s land Israel will have after negotiations to have it already.

        “unethical”? C’mon, the “Jews” would never ….. ;-)

      • Mooser
        November 6, 2014, 4:08 pm

        ““unethical”? C’mon, the “Jews” would never ….. ;-)”

        I take your point, “talknic”, and I thank you for being gentle about it, which, when dealing with me, must involve a nearly beatific rhetorical forbearance.
        But you are right, I never should have reduced it to the personal, the tribal, the intra-ethnic considerations. Those must be foresworn in the collective act of self-self-determination necessary to build a State!

        Sounds like one hell of a fraud to me.

      • Citizen
        November 6, 2014, 5:00 pm

        By marketing and selling properties in the occupied West Bank, including East Jerusalem, RE/MAX is complicit in Israel’s illegal population transfers, land theft, and colonization.

      • Mooser
        November 6, 2014, 6:31 pm

        , “RE/MAX is complicit in Israel’s illegal population transfers, land theft, and colonization.”

        Is that how far it goes? There isn’t a US law against selling real estate in occupied territories by American companies?

  9. adele
    November 5, 2014, 6:17 am

    According to the protocols outlined in the U.S. Department of State’s “Foreign Affairs Manual Volume 7 – Consular Affairs”, it seems very clear on how this matter should be handled:

    7 FAM 1360 APPENDIX D BIRTH IN ISRAEL, JERUSALEM, AND ISRAELI-OCCUPIED AREAS
    Pages 10 – 12

    a. Background. As a result of the June 1967 Arab-Israeli War, the Government of
    Israel currently occupies and administers the Golan Heights, the West Bank,
    and the Gaza Strip. U.S. policy recognizes that the Golan Heights is Syrian
    territory, and that the West Bank and the Gaza Strip are territories whose final
    status must be determined by negotiations.

    b. Birth in the Golan Heights: The birthplace that should appear on passports
    whose bearers were born in the Golan Heights is SYRIA.

    c. Birth in the West Bank or in the No Man’s Lands between the West Bank and
    Israel: The birthplace for people born in the West Bank or in the No Man’s
    Lands between the West Bank and Israel is WEST BANK; Those persons born
    before May 1948 in the area known as the West Bank may have PALESTINE
    listed as an alternate entry. Those born in 1948 or later may have their city of
    birth as an alternate entry. Persons born in the West Bank in 1948 or later
    may not have Palestine transcribed as an alternate entry.

    d. Birth in the Gaza Strip: The birthplace for people born in the Gaza Strip, is
    GAZA STRIP. PALESTINE is the alternate acceptable entry provided the
    applicant was born before 1948.

    e. Birthplace in Israel: Write ISRAEL as the place of birth in the passport if and
    only if the applicant was born in Israel itself (this does not include the Gaza
    Strip, the Golan Heights, Jerusalem, the West Bank, or the No Man’s Lands
    between the West Bank and Israel). Do not enter ISRAEL in U.S. passports as
    the place of birth for applicants born in the occupied territories.

    f. Birthplace in Jerusalem: For a person born in Jerusalem, write JERUSALEM as
    the place of birth in the passport. Do not write Israel, Jordan or West Bank for
    a person born within the current municipal borders of Jerusalem. For applicants
    born before May 14, 1948 in a place that was within the municipal borders of
    Jerusalem, enter JERUSALEM as their place of birth. For persons born before
    May 14, 1948 in a location that was outside Jerusalem’s municipal limits and
    later was annexed by the city, enter either PALESTINE or the name of the
    location (area/city) as it was known prior to annexation. For persons born after
    May 14, 1948 in a location that was outside Jerusalem’s municipal limits and
    later was annexed by the city, it is acceptable to enter the name of the location
    (area/city) as it was known prior to annexation.

    g. Birthplace in Area Formerly Known as Palestine: An applicant born in the area
    formerly known as Palestine (which includes the Gaza Strip, the Golan Heights,
    Jerusalem, or the West Bank) may object to showing the birthplace. In such
    cases, explain the Department of State (CA)’s general policy of showing the
    birthplace as the country having present sovereignty. The Senior Passport
    Specialist, Supervisory Passport Specialist, or Adjudication Manager at a
    domestic passport agency or center or supervisory consular officer or regional
    consular officer at a U.S. embassy or consulate may make an exception to show
    PALESTINE as the birthplace if the applicant was born before 1948. If the
    applicant was born in 1948 or later, the city or town of birth may be listed if the
    applicant objects to showing the country having present sovereignty.

    h. For a person born before May 14, 1948 in a place that was outside Jerusalem’s
    municipal limits and later was annexed by the city, either PALESTINE or the
    name of the location (area or city) as it was known before annexation may be
    used as an alternate entry. For a person born after May 14, 1948 in a place
    that was outside Jerusalem’s municipal limits and later was annexed by the
    city, the alternate entry is the name of the location (area or city) as it was
    known before annexation.

    —-> i. If the applicant lists as place of birth on a passport application a jurisdiction
    other than that provided in this 7 FAM 1360 Appendix D, the passport
    authorizing officer should annotate the passport application with the correct
    place of birth code reflected in this guidance. If the passport applicant objects
    to the listing of the current area of sovereignty as defined in this guidance, the
    applicant may elect to list the area or city name as listed in this section.
    However, Passport authorizing officers will advise applicants that foreign
    officials who examine the passport and are unfamiliar with (or object to) the
    area name may question its appearance in the passport and possibly deny
    entry to the bearer.

    Page 12 of the pdf has an easy reference chart outlining the DOS’s rules

    http://www.state.gov/documents/organization/94675.pdf

    • just
      November 5, 2014, 11:13 am

      thanks, adele.

      seems clear enough to me.

      • Mooser
        November 5, 2014, 11:24 am

        “seems clear enough to me.”

        Yes, but you are probably evaluating with those old ‘single standards’ which are never any good. You need to double your standards, or maybe even triple them.

      • just
        November 5, 2014, 11:38 am

        much appreciated, Mooser.

        lol.

      • talknic
        November 5, 2014, 12:35 pm

        Mooser
        “You need to double your standards, or maybe even triple them.”

        And raise those triple standards high high high !!!

    • talknic
      November 5, 2014, 12:45 pm

      @ adele

      “… the West Bank and the Gaza Strip are territories whose final
      status must be determined by negotiations.”

      In the opinion of the US. However, the Palestinians are not legally bound to US opinion.

      Palestinians are actually under no legal obligation to negotiate and they are under no legal obligation to forgo any of their legal rights if they do negotiate.

      Meanwhile, Israel IS obliged to adhere to International Law, UN Charter and relative conventions under which it should withdraw from all non-Israeli territories.

      • just
        November 5, 2014, 12:47 pm

        excellent & important points, talknic!

      • adele
        November 5, 2014, 1:58 pm

        “Palestinians are actually under no legal obligation to negotiate and they are under no legal obligation to forgo any of their legal rights if they do negotiate.”

        no objection from me on your excellent points….but for purposes of this court case it seems like the State Department’s protocols in terms of nomenclature are adhering to internationally recognized standards; in other words, this is a matter that would appear to me to lie outside of the U.S. Supreme Court’s adjudication and other countries are in no way bound to respect any U.S. ruling which goes against the International protocols, nor honor the bearer’s passport.

  10. Kay24
    November 5, 2014, 7:11 am

    It would be interesting to know if anywhere else in the world, a nation gloats because their own brand has been elected into the US Congress. AIPAC must be proud of their work.

    http://www.haaretz.com/jewish-world/jewish-world-news/1.624777

  11. Walid
    November 5, 2014, 7:49 am

    And what if the US ends up moving its embassy to Jerusalem, other than for the usual rhetoric, who will actually do anything about that, Saudia, Qatar, Kuwait, the UAE, Oman, Bahrain, Egypt or Jordan?

  12. seafoid
    November 5, 2014, 11:07 am

    The US supreme court cannot decide on the status of Jerusalem. It has nothing to do with the US.

    Jews can lobby as much as they want in the US but the power stops there.

    • amigo
      November 6, 2014, 1:15 pm

      As an Irish person I resent the usurpation by America of the UN,s authority .Screw the bought and paid for( by aipac) Congress /Senate and State Dept .Who gives a rat,s posterior what Uncle Sam,s position on the International City of Jerusalem is.

  13. Citizen
    November 5, 2014, 3:31 pm

    What was the true intent behind the legislation at issue? When Lewin denied that Section 214(d) amounted to a “political declaration” regarding Jerusalem, Kennedy quipped that in that case he wasn’t “sure why Congress passed it” in the first place. If the legislation is approved, common sense says this will make US position even more confusing to everyone and every country with any interest in US foreign policy/diplomacy. It’s not as easily handled as SCOTUS changing the litmus test of an individual giving up US citizenship. (To “intent” of the individual).

    • Annie Robbins
      November 5, 2014, 6:53 pm

      the true intent is these inch by inch constant legalese trying to change the status of jerusalem. if you read sotomayors exchange with lewin at one point lewin tries to reference back to some aipac bill that included a waiver for the prez. so by the fact there was a waver she wanted it to apply it was a disputed policy of the US, which it is not. and then she said well, congress disputes it. so i’m sure the reason congress passed a bill about this child is because some constiutent likely in mark kirk’s district got the bill on the floor and then everybody had to vote for it and there starts the process. and all this legal work is pri bono and lawyers fees are high. so this is an israel lobby bill that if it gets a ruling from the court in it’s favor will just trun into more legislation implying therefor the US recognizes jerusalem as israel. clearly.

      • Shingo
        November 5, 2014, 7:02 pm

        the true intent is these inch by inch constant legalese trying to change the status of jerusalem.

        It surprises me why they are trying so hard to do it in the US courts and not the ICJ or UN. Even if they succeed at the US Supreme Court lever – which is highly doubtful – how does that change the legal status of Jerusalem itself given that the US has no jurisdiction over Jerusalem?

  14. Horizontal
    November 5, 2014, 4:49 pm

    Are there no limits to which this miserable foreign lobby will not go? Isn’t controlling two branches of our government enough?

    Where’s the facepalm emoticon when you need it?

    • just
      November 5, 2014, 4:54 pm

      “Are there no limits to which this miserable foreign lobby will not go? Isn’t controlling two branches of our government enough?”

      no.

      the only way to vanquish them is to make the masses rise up.

      it’s the only way.

  15. James Canning
    November 6, 2014, 2:01 pm

    Yes, the ISRAEL LOBBY pretty much controls the US Congress in matters pertaining to Israel. A very dangerous situation, obviously

  16. traintosiberia
    November 8, 2014, 12:09 am

    http://www.theguardian.com/commentisfree/2014/nov/03/american-president-power-supreme-court-case-jerusalem
    An interesting but convoluted article by Dean ofvUniversity of California Irvine . He thinks it is none of Presidents business to interfere with congress passed laws.
    I wonder where he was when US was not following the laws and not following for 40 years . Those laws if properly plied could have prevented refugee problem ,nucleariazation of Israel, could have triggered sanction, could have prevented veto in UN in Israel s favor,could have prevented Israel corrupting the process way back in 2960 when senator was investigating the ancestor of AIPAC .
    It could have even prevented a few wars bybUS against other nation .

    • just
      November 8, 2014, 4:07 pm

      Erwin Chemerinsky’s concern with regard executive power is interesting. In this article that he penned, he appears more concerned about the Jewish ‘claim’ to Jerusalem and the Zivotofsky’s ridiculous claim.

  17. traintosiberia
    November 8, 2014, 6:01 pm

    Yes he does. He also conveniently forgets how and to what magnitude of unscrupulousness,bribery,disinformation,and suppression of well known facts have been used to pass these laws over the years . He forgets that sometimes these laws have been written by AIPAC and have been inserted in to the haystack of piles of unrelated issues as a needle by some interns .
    He also does not see the inconsistency of this law with existing US laws in regard to occupied territories and in particular to the positions of US governments since 1967 .

    He should pick up from this -“The present Israeli Prime Minister, Benjamin Netanyahu and some of his ministers have of late hinted at the truth. Netanyahu recently told the Knesset, Israel’s parliament, that criticism of his government’s expansion of Jewish settlements in East Jerusalem (which are illegal under international law), whether it comes from the U.S. government or Jewish groups such as J Street and Peace Now, are “words detached from reality” and “foster false statements [of hope] from the Palestinians,” therefore delaying the coming of “peace.” by Lawrence Davidson i( a history professor at West Chester University ,PA)

    http://consortiumnews.com/2014/11/07/the-dying-israeli-palestinian-peace-process/

    and should argue against any political engagement with Israel from all level . Israeli objectives and method to get to that goals are illegal by US laws .

    • James Canning
      November 9, 2014, 7:17 pm

      Aipac promotes , encourages, rewards etc etc Israel’s contempt for international law.

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