Jerusalem Is at the Center of Another Conflict: Separation of Powers

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The Supreme Court will hear a case that's about which country the holy city belongs to -- and about which branches of the U.S. government can determine foreign policy

jerusalem nov8 p.jpg

A section of Israel's separation barrier is seen on a hill between the West Bank village of Abu Dis and Jabel Mukaber on the edge of Jerusalem / AP

Born in nine years ago in West Jerusalem, Menachem Binyamin Zivotofsky found himself on Monday at the U.S. Supreme Court, which could ultimately decide whether he can list Israel as his place of birth on his American passport -- something no American born in the holy city has been able to do.

The debate, in part, centers on a provision in a 2002 foreign relations law that allows people to request that Israel be designated as their place of birth if they were born in Jerusalem. Both the George W. Bush and Obama administrations have said the law violates the executive's constitutional right to recognize foreign powers by challenging the U.S. policy of not identifying Jerusalem as part of any state. Bush signed the law, but said the provision "would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to... determine the terms on which recognition is given to foreign states."

The status of Jerusalem as a potential capital for both Israel and the Palestinians remains unresolved while long-stalled peace talks show no sign of resuming anytime soon.

The two policies came to a head when the State Department denied Zivotofsky's parents' request to have Israel listed as his birthplace. They sued, contending the State Department violated the 2002 law.

Aside from the separation-of-powers issue, the justices also have to decide whether it is the court's place to make a ruling. The Obama administration contends that the dispute is a political question the executive branch and Congress need to settle on their own, and lower courts have already dismissed the case on those grounds.

Much of the questioning at Monday's hearing focused on which branch had the authority to recognize foreign nations. U.S. Solicitor General Donald Verrilli Jr. contended that the receipt of ambassadors clause in the Constitution, as well as history and practicality, show that the executive alone has the power to recognize other states.

"The Constitution commits that power exclusively to the executive, and neither a court nor the Congress can override that judgment," he said.

But Nathan Lewin, representing the Zivotofskys, challenged the administration's interpretation of the Constitution and said history shows that Congress has often shared with the president a recognition power, making the 2002 law constitutional. He portrayed the case as a very specific dispute that would not have larger foreign policy consequences

"This is one of these very rare situations where Congress has said what the president has done, and what the Department of State has done, is simply wrong," Lewin said. "It does not hobble the president in terms of future foreign policy."

There was also disagreement on which branch can monitor what is listed in passports, and even on what a passport is. Lewin said passports are pieces of personal identification and Congress has authority over them as part of its immigration oversight, but that drew a challenge from Justice Elena Kagan.

"It's a passport statute that seems to have nothing to do with the immigration functions that passport statutes usually serve," Kagan said. "It seems to have everything to do with Congress's declaration of a foreign policy, as opposed to Congress's exercise of power relating to immigration control."

Verrilli argued that passports can also delineate official American positions on issues. The administration has warned that allowing Israel to replace Jerusalem as the place of birth on passports would have broader foreign policy implications.

As the justices grilled the attorneys, they also raised the issue of whether the debate was a political question that the court could not settle.

"If they both have authority in the field and they are exercising it in different fashions, I frankly would not be inclined to intervene," Justice Antonin Scalia said. "I would let them conduct the usual inter-branch hand wrestling that goes on all the time, which probably means that if Congress cares enough, Congress will win."

But Justice Sonia Sotomayor questioned what would happen if the Court did not make a decision.

"If we call this a political question and don't address the merits, the outcome is that the president is saying that he's entitled to ignore the Congress," said Sotomayor, who was President Obama's first nominee to the court. "I don't know what kind of message that sends, but it's a little unsettling."

A decision in the case, M.B.Z. v. Clinton, is expected next year.

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Andrew Joseph is National Journal’s White House fellow and also covers lobbying for the Influence Alley blog.

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