The Celebrate Israel Festival on May 31 at Pier 94, slated to be the largest gathering to date of Israeli-Americans in New York.
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 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.
If you don't see your comment after publishing it, refresh the page.
Comments are closed.
As for the president’s new, softer tone vis-à-vis Prime Minister Netanyahu and Israel, this is most likely being driven by the results of the recent Israeli election.
What especially appeals to us is his grand – some critics would say extravagant –view of what the borders of Israel should look like.
There was something else of great importance in play – something we would have liked to see him take into account before deciding to stand with the boycotters.
The establishment of Hebrew University was a cause much beloved to Einstein who in 1923, during what would be his only trip to Eretz Yisrael, delivered the university’s inaugural lecture on Har Hatzofim (Mt. Scopus) and, discussing the theory of relativity, spoke the first few sentences of his address in Hebrew.
The Golden Square wanted Germany to destroy the British and Jewish presence in their country. The Third Reich craved what was beneath the ground – oil.
Ida Nudel’s account of how the Soviets persecuted and punished her was far worse than imagined.
Swim4Sadna is an annual event benefiting Sadna, an integrative special-ed community in Gush Etzion
Prof. Wistrich, was THE foremost historian of anti-Semitism; committed spokesman & advocate of Jewry
Jewish Voices for Peace’s 2015 Haggadah is a blatant anti-Israel screed crying, “L’chayim to BDS!”
On his shloshim, I want to discuss a term I’ve heard countless times about Rav Aharon: Gedol HaDor
After obsequious claims of devotion to Israel, Obama took to criticizing Israel on peace process
Mr. Obama, Israeli voters have democratically chosen to apply Israeli sovereignty over Judea&Samaria
Netanyahu so disdains Shaked’s appointment he completely ignored her after the swearing-in ceremony
FBI’s undercover agents contacted ORA (Org. for the Resolution of Agunot) pretending to be an agunah
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
The late Israeli Supreme Court judge Menachem Elon, was a pioneer of Jewish and Israeli law.
On Tuesday, February 28, it was widely reported that the basketball team of Houston’s Robert M. Beren Academy had “forfeited” its place in the semi-finals of the tournament conducted by the Texas Association of Private and Parochial Schools (TAPPS) because it would not play on Friday night and Saturday. But a headline in Friday’s New York Times read: “In Reversal, a Jewish School Gets to Play.”
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: