web analytics
July 30, 2015 / 14 Av, 5775
At a Glance
InDepth
Sponsored Post


Home » InDepth » Op-Eds »

Jerusalem-Born U.S. Citizens Are Born In Israel


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.”

About the Author: Nathan Lewin, a former president of the Greater Washington Jewish Community Relations Council, has argued 28 cases in the Supreme Court of the United States and is an adjunct lecturer at Columbia Law School where he teaches “Religious Minorities in Supreme Court Litigation.”


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “Jerusalem-Born U.S. Citizens Are Born In Israel”

Comments are closed.

Current Top Story
PUG Meeting
Abbas Reshuffles Unity Govt with Hamas, Claims ISIS Is Already in Gaza, ‘No Sense Denying It’
Latest Indepth Stories
Rabbi YY Rubinstein

American leftists have a pathological self-inflicted blindness to the dangers of political Islam

Tobin-073115

Hillary should THANK Trump; By dominating the news he’s overshadowed the implosion of her campaign

Rabbi Yaakov Spivak

Hard to remember when Jewish youth were so hostile to their heritage as they are on campuses today.

Talks between Iran and the P5+1 were likely to be extended beyond Obama's self-imposed deadline.

Names of the enablers of Iran’s Nuclear weapons will be added next to Hitler’s on the list of infamy

By most accounts, the one person with the political muscle to swing enough Democratic votes to override a veto is Sen. Schumer.

The next day, in a speech in New York to the Council on Foreign Relations, Mr. Kerry substantially upped the ante.

In Israel, the judiciary has established itself as superior to ALL other branches of the government.

The Fifteenth Day of the month of Av became a day of national rejoicing. The moment that had seemed hopeless became the moment of Redemption.

I think the melodies in our religious services have a haunting sound to them that just permeates your guts and gets into your soul. If you have any musical inclination, I think they inspire you to compose.

Cavalier analogies to the Holocaust are unacceptable, but Huckabee’s analogy was very appropriate.

Pollard was a Jewish-head-on-a-pike for all American Jews to see and to learn the explicit lesson.

If the Iran deal passes, Obama’s WH becomes world’s leading financier of terrorism against Americans

{Originally posted to the author’s website, FirstOne Through} Some passionate and eloquent liberals have bemoaned the state of inclusiveness among Jews today. Leon Wieseltier, editor of the New Republic penned an angry piece “J Street’s Rejection Is a Scandal” about the exclusion in 2014 of J Street from the Conference of Presidents of Major American Jewish Organizations. […]

Magnanimity by Moshe Dayan, allowing Muslim control of the Temple Mount, led to today’s situation.

More Articles from Nathan Lewin
Nathan Lewin

“Rabbi, how will you answer 2 Jewish men when they ask that their wedding be performed in our shul?”

Nathan Lewin

In a 1936 majority opinion, Supreme Court Justice George Sutherland said that the president is “the sole organ of the federal government in the field of international relations.”

FBI’s undercover agents contacted ORA (Org. for the Resolution of Agunot) pretending to be an agunah

Obama’s approach to evildoers echoes Gandhi’s fatuous and muddleheaded pleas to his “friend” Hitler

Roosevelt sneaked out of the White House through a rear exit rather than meet with the 400 Rabbis

In the Thirties it was common for anti-Semites to call on Jews to “go to Palestine!”

Federal and local laws protect your right to workplace accommodations for your religious observance.

The inauguration of an American president has, since 1937, always begun with an invocation by a clergyman

Printed from: http://www.jewishpress.com/indepth/opinions/jerusalem-born-u-s-citizens-are-born-in-israel/2011/08/10/

Scan this QR code to visit this page online: