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Editor’s Note: On July 30, the firm of Lewin & Lewin, LLP, filed in the Supreme Court its brief in Zivotofsky v. Clinton, No. 10-699, on which the Supreme Court will hear oral argument in early November.
The constitutional issue in the case is whether Congress had the authority to enact a law in 2002 that directs the Secretary of State to permit U.S. citizens born in Jerusalem to record their place of birth in their passports as “Israel.”
Because the State Department has consistently refused to recognize any part of Jerusalem as being in Israel, the government has refused to implement the 2002 law, claiming it violates the President’s constitutional authority to “recognize foreign sovereigns.”
This is the Introduction to the Zivotofsky brief written by Nathan Lewin, followed by a Summary of Argument.
In our complex modern world, when the national interest often requires instantaneous response to dangers from abroad, Congress routinely assigns the lead in foreign relations to the president. Statutes give him great flexibility in dealing with international relations so that American interests in the world arena can be quickly and effectively implemented.
This is the unusual case in which, on a subject that calls for no emergency treatment, Congress decided that an Executive Branch policy implemented by Department of State bureaucrats for several decades was unjust and discriminatory.
Congress overwhelmingly enacted a narrow law that gives approximately 50,000 American citizens born in Jerusalem the right to have their passports bear the same “place of birth” as American citizens born in Tel Aviv or Haifa. To these Americans, personal dignity and conscientious conviction calls on them to identify themselves as born in “Israel.”
The Department of State policy prohibiting such an entry in the passports of Jerusalem-born American citizens is singularly arbitrary and discriminatory. The Foreign Affairs Manual repeatedly takes account of the “strenuous objection” expressed by Palestinian Americans born within the borders of Israel to having “Israel” recorded on their passports.
To accommodate these “objections,” State Department policy permits substitution of a city of birth so that “Israel” may be eradicated.
The State Department policy also authorizes entries such as “West Bank” or “Gaza Strip,” which are not recognized foreign nations. It bars only supporters of Israel – overwhelmingly Jews who have a religious attachment to the land – from identifying their birthplace in a manner that conforms with their convictions.
The government has chosen to litigate this case by ignoring the narrow and limited impact of the statute Congress enacted. Courts below and this Court have been intimidatingly told that the judiciary is being asked in this case to determine the “status of Jerusalem” – “one of the most sensitive and long-standing disputes in the Arab-Israeli conflict.” But the government will surely acknowledge that Jerusalem’s “status” for American foreign-policy purposes is not affected by whether Jerusalem-born citizens are allowed to record “Israel” as their place of birth. The “status” of Taiwan, which the United States officially determined in 1979 to be part of the People’s Republic of China, was not affected in 1994 when Congress, with a law paralleling Section 214(d), directed that American citizens born in Taiwan should be permitted to record “Taiwan” as their place of birth.
The government does not claim that the practical implementation of Section 214(d) will have any perceptible impact on American foreign policy. There are now approximately 100,000 U.S. passports that record their holders as having been born in Israel because they were born in cities like Tel Aviv and Haifa. If the 50,000 additional American citizens whose passports now read “Jerusalem” travel internationally with passports that say they are born in “Israel,” America’s foreign policy will not be impaired.
The government’s only claim is that the publicity that accompanies the change in practice will be misperceived by Palestinians and the Arab world as an official change in America’s position on the status of Jerusalem. The government cites public statements made when Congress enacted Section 214(d) as proof of this purported adverse foreign policy impact. This fear of unjustified and erroneous foreign misperception – apparently transitory when Congress enacted Section 214(d) – cannot be sufficient to nullify the considered judgment of Congress.
The government acknowledged in discovery that the designation of “place of birth” in a passport has no intrinsic foreign-policy significance. A citizen’s place of birth is recorded in his or her passport only to facilitate identification. It is, like the passport-holder’s name, date of birth, and photograph, a means of identifying the individual. Although the passport is issued under the direction of the Secretary of State, there are portions of the document – such as the individual identifying entries – that have absolutely no foreign-policy significance.
Summary Of Argument
1. Senior Circuit Judge Edwards correctly dismissed as “specious” the contention that this case presents a “political question” that is nonjusticiable and that requires dismissal of the complaint. The “political question doctrine” is a prudential rule that removes the judiciary (a) from controversies that are “beyond judicial competence” because they turn on “policy choices and value determinations” that judges are not empowered to make and (b) from matters (such as impeachment) that are exclusively committed for decision to other branches of government. The central issue in this case is a constitutional separation-of-powers question that is well within the competence and expertise of federal courts: Does Congress have the constitutional authority to enact a law that entitles Jerusalem-born citizens to record “Israel” as their place of birth on passports and CRBAs?
2. The six criteria enumerated in the Court’s opinion in Baker v. Carr as illustrative of a “political question” apply only when a court is asked to resolve a case in which Congress has failed to set legislative standards. The relevant precedent for this case – in which the lower courts were asked to enforce a clearly enunciated legislative mandate – is the Japan Whaling Association case. In that case, no member of this Court had any difficulty in deciding the controversy (which turned on statutory construction) even though the possible consequence of a decision adverse to the Japanese petitioners was a serious blow to U.S. relations with Japan.
3. On the merits of the constitutional issue, we begin with the most-broad constitutional argument. Recent historical research has established that the president’s “power to recognize foreign sovereigns” was not intended, by the original understanding of the Founding Fathers, to be a “power” at all. It was a ceremonial duty, assigned to the president as a practical measure. A Congressional statute cannot be invalidated as interfering with this ceremonial function.
4. If a presidential “power to recognize foreign sovereigns” does exist, it does not extend to determining whether a particular city or territory is within the foreign sovereign’s boundaries. In two cases in which this Court had to determine jurisdiction over foreign territories, the Court assigned equal importance to legislative, as to executive, judgments. And in neither case did the Court indicate that the determination of which jurisdiction governed the foreign territory was ancillary to the “power to recognize foreign sovereigns.”
5. Although much-criticized dicta in the Curtiss-Wright opinion appears to give the president extra-constitutional exclusive control over America’s foreign policy, this Court’s decisions have adopted Justice Jackson’s concurring opinion in the Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-55 (1952)) as the governing guideline. Under that standard, the president’s power to make foreign policy determinations is at “its lowest ebb” when those determinations are neither authorized by Congress nor reached following Congress’ silence but actually conflict with Congress’s enacted laws. Only presidential actions that can survive cautious scrutiny may nullify Congress’s expressed will in the foreign-policy arena.
6. The State Department’s refusal to allow Jerusalem-born American citizens to record “Israel” as their place of birth cannot withstand such scrutiny. This prohibition has no rational basis other than a purported fear that Israel’s enemies will criticize American policy because they will misperceive the significance of allowing “Israel” to be recorded on passports. The State Department’s prohibition against recording “Israel” was, from its inception, erroneous and misguided. The government is now urging that it must be maintained permanently because changing it would be misconstrued. This reasoning justifies the maintenance of every poor and erroneous judgment that may be criticized by a foreign interest if corrected.
7. The folly of the State Department policy is also demonstrated by the fact that State Department personnel have occasionally failed to understand and apply the policy uniformly. Both before this lawsuit was brought and to this very day, individual citizens born in Jerusalem have reported that passports issued in Washington and New York to citizens born in Jerusalem record “Israel” as the place of birth. Moreover, other departments within the Executive Branch continue to issue official documents reading “Jerusalem, Israel.” These documents have apparently not resulted in protests from Palestinians and the Arab world that the government has predicted in this case.
8. The Taiwan experience in 1994 demonstrates that the stated fear of harm to foreign policy is greatly exaggerated. In that case, the People’s Republic of China had taken such great offense to passports recording “Taiwan” as a place of birth that it had refused to endorse visas on these passports. The recognition of a separate nation named “Taiwan” was, in and of itself, an affront to China. The same cannot be said of “Israel,” which is a recognized nation that Palestinians and the Arab world have learned to accept. Nonetheless, the State Department acquiesced in Congress’s directive in 1994 and there was no harm to American foreign policy.
9. The State Department practice effectively repealed by Section 214(d) was discriminatory. It accommodated American citizens who, for personal ideological reasons, are “vehemently” opposed to carrying passports that show “Israel” as a place of birth, but it did not accommodate American citizens – largely Jewish – who feel, with equal vehemence, that they want their passports to show “Israel.”
10. Finally, the method chosen by the president to challenge Section 214(d) was an unconstitutional one. If the president believed that the law violated the Constitution, it was his obligation to follow the course described in Article I, Section 7, Clause 2, and issue a veto that would be subject to further consideration by the Congress. Not having vetoed the law and having chosen instead to sign it, the president is obliged to execute the directive of Section 214(d).
Nathan Lewin is a Washington attorney who has appeared before the Supreme Court ion numerous occasions.
About the Author: Nathan Lewin is a Washington, D.C., lawyer who wrote the 1983 New York Get Law and the COLPA amicus curiae brief in Avitzur v. Avitzur, the 1983 New York Court of Appeals decision that approved, 4-to-3, the constitutionality of a pre-nuptial agreement requiring the couple to appear before a bet din in case of divorce.
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