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Court Weighs President's Power To Recognize Nations

Nov 6, 2011
Originally published on November 14, 2011 10:50 am

The U.S. Supreme Court steps into a test of the president's foreign policy powers on Monday. It is a test that combines the Middle East conflict with the dueling roles of Congress and the executive branch, plus an added dash of interest over presidential signing statements. At issue in the case is whether Congress can force the executive branch to list Israel as the birthplace for United States citizens born in Jerusalem.

Ever since the creation of the state of Israel in 1948, the U.S. government has declined to recognize Jerusalem as part of any country. Palestinians have long claimed the city as their own, and so have Israelis.

The U.S. State Department has long viewed the city's status as one of the key items to be negotiated in a Middle East peace deal. Consequently, the U.S. has avoided even seemingly minor actions that might undermine its role in the peace negotiations by implying any endorsement of Israeli or Arab sovereignty over the city.

Israel's supporters in Congress, however, have long objected to the U.S. policy, and have sought, through legislation, to force U.S. recognition of Jerusalem as Israel's capital. In 2002, Congress enacted a law urging the president to move the U.S. Embassy from Tel Aviv to Jerusalem, and requiring the State Department to allow American citizens born in Jerusalem to list their place of birth as Israel on passport documents.

President George W. Bush signed the legislation into law because it was part of a much larger foreign affairs bill, but he added a signing statement saying that he would not enforce the passport provision because he viewed it as an unconstitutional encroachment on presidential power. Although presidential signing statements have been issued since the presidency of James Madison, they became a flash point in the Bush administration because of their vastly increased number. Critics charged that Bush, instead of vetoing bills, was cherry-picking the provisions he liked and ignoring those he didn't like.

Into this maelstrom was born, in Jerusalem, the child of Ari and Naomi Zivotofsky, American citizens who emigrated to Israel in 2000 and maintain dual citizenship. But when the parents tried to have "Jerusalem, Israel" listed as their son's place of birth on his passport, the State Department refused, citing its longstanding policy.

"Jewish natives of Jerusalem, who are proud of being born in Israel, may not, according to the State Department regulations, have Israel on their passports," says lawyer Nathan Lewin, who represents the Zivotofskys. The result is that the passports "may only say Jerusalem."

So the Zivotofskys went to court, contending that this policy violated a duly enacted federal law. The Obama administration, echoing the policy of the Bush administration, contends, however, that the law is unconstitutional.

Indeed, presidents have long maintained that their constitutional authority to "receive ambassadors and other public ministers" implies the power to recognize foreign governments, and that the president similarly has inherent authority to determine the content of passports in implementing foreign policy.

John Bellinger, who served as counsel for the State Department in the Bush administration, cites an example. Congress, he says, "could not say, 'Well, it's fine that the president has recognized a particular country, but we don't think he should recognize a particular corner of it.' ... That would clearly be unconstitutional. And the view of the executive branch is that this case" presents exactly that situation, "that Congress is trying to force the president to recognize Jerusalem as being under the sovereignty of Israel."

The Zivotofskys counter that the founders of the nation did not intend to give the president an exclusive role in recognizing foreign nations. President Bush could have vetoed this legislation, they note, but he did not, and thus the law of the land is the congressionally enacted statute, which allows American citizens born in Jerusalem to have Israel stamped on their passports as their country of birth.

In their Supreme Court brief, the Zivotofskys argue that the State Department's policy is based on fear, "an erroneous and misguided fear, that Israel's enemies will criticize American policy because they will misperceive the significance of allowing 'Israel' to be recorded on passports."

The Obama administration counters that "U.S. national security interests would be significantly harmed at the present time" if the United States did anything to suggest that the U.S. recognizes Israel as sovereign over Jerusalem.

The lower courts threw out the Zivotofskys' case, saying it involved a political dispute between two branches of government that the courts should stay out of. But Lewin, the Zivotofskys' lawyer, contends that this case is just like any other test of an existing law. "That's what courts do all the time," he says. "They say, 'Is a law that Congress enacted constitutional if the president says it interferes with his power?' "

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Today, the U.S. Supreme Court takes on a case that involves several of the long-running debates in American politics. The story involves the power of the president to make foreign policy and a congressional effort to assert its own power. The story also involves the state of Israel, as well as the status of the city of Jerusalem. All these issues come up in response to a seemingly straight-forward question: Whether U.S. citizens born in Jerusalem can list Israel as their birthplace. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: First, let's look at the big picture. Ever since the creation of the state of Israel in 1948, the U.S. government has declined to recognize Jerusalem as part of any country. Palestinians have long claimed the city as their own, and so have the Israelis.

The U.S. State Department has longed viewed the city's status as one of the key items to be negotiated in a Middle East peace deal. Consequently, the U.S. has avoided even seemingly minor actions that might imply any endorsement of Israeli or Arab sovereignty over the city.

Israel's supporters in Congress, however, have long objected to the U.S. policy, and have sought, through legislation, to force U.S. recognition of Jerusalem as Israel's capital. In 2002, Congress enacted a law urging the president to move the U.S. embassy from Tel Aviv to Jerusalem, and requiring the state department to allow American citizens born in Jerusalem to list their place of birth as Israel on passport documents.

President Bush signed the legislation into law because it was part of a much larger foreign affairs bill, but he added a signing statement saying he would not enforce the passport provision because he viewed it as an unconstitutional encroachment on presidential power.

Although presidential signing statements have been issued for centuries, they became a flashpoint in the Bush administration because of their vastly increased number.

Into this maelstrom was born in Jerusalem the child of Ari and Naomi Zivotofsky, American citizens who immigrated to Israel in 2000 and maintain duel citizenship. But when the parents tried to have Jerusalem, Israel listed as their son's place of birth on his passport, the State Department refused, citing its longstanding policy. Lawyer Nathan Lewin represents the Zivotofskys.

NATHAN LEWIN: Jewish natives of Jerusalem, who are proud of being born in Israel, may not, according to the State Department regulations, have Israel on their passports. They may only say Jerusalem.

TOTENBERG: So the Zivotofskys went to court, contending this policy violated a duly enacted federal law. The Obama administration, echoing the policy of the Bush administration, contends, however, that the law is unconstitutional. John Bellinger served as counsel for the State Department in the Bush administration.

JOHN BELLINGER: Both the Bush and the Obama administration have said that Congress is unconstitutionally infringing on powers that are given by the Constitution only to the president with respect to our foreign relations.

TOTENBERG: Indeed, presidents have long maintained that their constitutional authority to receive ambassadors and other public ministers implies the power to recognize foreign governments and that the president similarly has inherent authority to determine the content of passports in implementing foreign policy. As the bush administration's Bellinger observes...

BELLINGER: Congress could not, for example, well, it's fine that the president has recognized a particular country but we don't think he should recognize a particular corner of it for some reason. That would clearly be unconstitutional. And the view of the executive branch in this case is that that's no different here, that Congress is trying to force the president to recognize Jerusalem as being under the sovereignty of Israel.

TOTENBERG: The Zivotofskys counter that the founders of the nation did not intend to give the president an exclusive role in recognizing foreign nations. President Bush could have vetoed this legislation, they note, but he did not, and thus the law of the land is the congressionally enacted statute, which allows American citizens born in Jerusalem to have Israel stamped on their passports as the country of birth.

The lower courts threw out the Zivotofskys case, saying it involved a political dispute between two branches of government that the courts should stay out of. But Nathan Lewin, the couple's lawyer, contends this case is just like any other test of an existing law.

LEWIN: That's what courts do all the time. They say is a law that Congress enacted constitutional if the president says it interferes with his power.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.