In articulating its issues in Zivotofsky vs. Clinton, the court disregarded existing precedent from all three branches of the federal government.
Arguments are set for Monday.
Menachem Binyamin Zivotofsky was born in a hospital in West Jerusalem -- an undisputedly Israeli area. His U.S. Consular Report of Birth Abroad (U.S. certificate of a foreign birth) lists his birthplace as Jerusalem but his parents wanted Israel added -- a request denied by the State Department.
The boy was born in 2002, a month after President George W. Bush signed into law the Foreign Relations Authorizations Act. Section 214 of the Act, "United States Policy with Respect to Jerusalem as the Capital of Israel," included the requirement that the State Department record Jerusalem births as "Jerusalem, Israel," if the parents so desire.
The parents sued on their son's behalf in federal court in Washington. The case was dismissed on the basis that the birth certificate matter would have required the court to make a foreign policy determination regarding the status of Jerusalem.
The court said the matter was a political question it isn't permitted to hear and should, instead, be decided by the political branches of government -- the executive and the Congress.
When Bush signed the law, he issued a signing statement saying the measure will not be allowed to affect U.S. policy regarding Jerusalem. The law, he said, would "impermissibly interfere with the president's constitutional authority to formulate the position of the United States, speak for the nation in international affairs and determine the terms on which recognition is given to foreign states."
The court will decide whether a political question deprives a federal court of jurisdiction to enforce a federal statute that expressly directs how the secretary of state registers the birthplace of a U.S. citizen on a birth certificate and passport.
The first elephant in the room is that the Supreme Court decided in 1998 in Clinton vs. New York that signing statements are unconstitutional.
The constitution gives the president just two choices: accept a bill as passed or veto it. A signing statement amounts to a "line-item veto" -- wherein the president cherry-picks the parts of the legislation he wants to become law -- and is thus impermissible.
That elephant trumpets rather loudly a matter of embarrassment for President Barack Obama. Bush's signing statement does not have the force of law and Obama need not adhere to its provisions. Obama, who taught constitutional law, criticized Bush during the 2008 presidential campaign for his excessive use of signing statements, but Obama, as president, has himself issued them and is adopting as valid one of his predecessor's.
Nathan Lewin, representing the Zivotofskys, said the petitioners are merely asking the courts to enforce a law the president signed and to disregard a signing statement that does not have the force of law.
Menachem Zivotofsky's passport is not a statement of foreign policy, but if it is seen as such, an earlier determination in a matter concerning Taiwan -- which is the second elephant-in-the-room-issue -- should be followed.
Zivotofsky is a case of first impression for the Supreme Court on the issue of whether Section 214 impermissibly infringes on the president's power to recognize foreign sovereigns, but the State Department's own past actions concerning Taiwan amount to a precedent that obviates the need for the court to hear the matter.
In the early 1990s, the State Department refused to allow Americans born in Taiwan to have Taiwan named as their place of birth on passports. The official U.S. policy held there is but one China and Taiwan is not a separate country. The Department's position was that allowing Taiwan on passports would adversely affect its interactions with China's communist leadership.
In 1994, Congress passed a law instructing the State Department to permit Americans born in Taiwan to have their birthplace listed as Taiwan on passports. The State Department complied with the congressional directive despite vigorous communist protest.
The State Department -- ignoring its own precedent -- maintains allowing U.S. documentation bearing the name "Jerusalem, Israel" shouldn't be allowed because it will provoke protest from the Arab states.
"A decision by this court on the merits would risk offending either, or both, the legislative and executive branches, which are at loggerheads over United States policy regarding Jerusalem. Such conflicts are best resolved through political means," said U.S. District Judge Gladys Kessler in her decision in favor of the State Department. "Should this court add its voice to those of the president and Congress on the subject of Jerusalem's status, a controversial reaction is virtually guaranteed. Such a reaction can only further complicate and undermine United States efforts to help resolve the Middle East conflict."
It appears, then, the lower courts and the Obama administration are more concerned about upsetting the Arab world than they are with enforcing the law.
The Supreme Court probably will decide that Congress' foreign-policy directive to the State Department is subject to court jurisdiction. It wouldn't have made sense for the court to agree to hear a case it would simply throw out on a procedural issue.
The court implicitly distinguishes Zivotofsky from the Taiwan precedent. If it had found the two cases to be similar, it simply would have remanded the case. That elephant will lumber around the courtroom because no distinction between Israel and Taiwan should be made in this instance.
The Obama administration also need not worry about the health of its signing-statement elephant: The court, in its articulation of the issues, focused on whether the political question issue deprives a court of its jurisdiction to enforce a law rather than on whether an unconstitutional signing statement curtailed the enforcement of that law.
Lewin did include the signing-statement issue in his brief, but relegated it to the end for practical reasons: He said the lower courts have ignored it, but he hopes the high court will give the question more weight and not be reluctant to address it.
Thus, the Supreme Court appears set to avoid the elephants, too -- unless Lewin is permitted to bring up the signing statement issue before the panel of justices.
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