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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 has argued numerous cases in the U.S. Supreme Court and teaches a seminar in Supreme Court litigation at Columbia Law School.
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Israel must develop it’s truthful message to be as clear & simple to comprehend as the Arab’s lies
2 basic aspects of Aristotelian thought remarkably like Jewish thought: “Involvement” & “Purpose”
“Farming still allows some unique opportunities for mitzvah fulfillment that a city dweller never meets.”
Feiglin: Only true liberty will allow us to genuinely connect to our Jewish identity.
The silver lining with early elections is the chance to change the current dysfunctional government.
The Holocaust Educational Trust Ireland informed the host he could not say “Israel or Jewish state”
It’s fascinating how sources attain the status “traditional,” or its equivalent level of kashrus.
The West needs to ensure Russia understands that aggression comes at a significant cost.
What benefit is a learning experience that leaves kids confused,disillusioned&harms self confidence?
Girlfriend and double cop-killer Ismaaiyl Brinsley apparently was influenced by Islamic extremism.
We see pictures of mosques, monuments for terrorists, illegal schools, and hundreds of apartments being built on Jewish land without repercussions. We are losing Jewish property, so it is up to us to protect it.
Thus, despite the increasingly serious problems for the mayor arising out of the current anti-police protests, Mr. de Blasio apparently will be cut no slack by those who seem to be aiming for a significant role in running the city from the streets and who will do whatever they can to prevent their momentum from ebbing.
Also left unsaid was the fact that the menorah and its oil were in the Beit HaMikdash, which of course was located on Har HaBayit – the Temple Mount that present-day Muslims claim as their own.
In the Thirties it was common for anti-Semites to call on Jews to “go to Palestine!”
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.”
On August 9, 2001, Ahlam Tamimi, a member of Hamas, drove a suicide bomber to the Sbarro restaurant in the heart of Jerusalem, where the bomber blew himself up, killing 15 people including Judy Greenbaum, an American citizen from New Jersey.
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.
Congress has never seen a better friend of the observant Jewish community than Stephen Solarz, who died of esophageal cancer on the 22nd of Kislev. Yonoson Rosenblum’s recently published biography of Rabbi Moshe Sherer describes Solarz as an “invaluable ally” for many Agudath Israel projects and there are 20 references to Solarz in the book’s index.
Printed from: http://www.jewishpress.com/indepth/opinions/jerusalem-born-u-s-citizens-are-born-in-israel/2011/08/10/
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