The plaintiff in the case, Menachem Binyamin Zivotofsky, was born in a hospital in West Jerusalem -- an indisputably Israeli area. His U.S. Consular Report of Birth Abroad (U.S. certificate of a foreign birth) lists Jerusalem as his birthplace. His parents, however, wanted "Israel" added pursuant to a 2002 federal law passed a month before the boy was born.
The request was denied by the State Department on the grounds the executive branch, not Congress, has the power to decide matters of foreign affairs, and including "Israel" on the documents might have provoked protest from the Arab nations.
Neither the federal trial court nor the appellate panel treated the constitutional issue, which is whether the statute, Section 214(d) of the Foreign Relations Authorization Act, unconstitutionally encroached on the president's power over foreign affairs.
The lower courts threw out the case on the basis the suit brought up a political question that may be determined only by the political branches of the government and not by the judiciary.
The high court, however, explained the case did not present a political question and focused instead on the constitutional issue. Accordingly, it remanded the case to the Washington district court for trial on the merits of the constitutional issue.
The Supreme Court, in an 8-1 decision handed down last week, said Zivotofsky's request to have "Israel" on his papers is straightforward, narrow and devoid of political implications.
"Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel," said Chief Justice John Roberts, writing for the majority. "He instead seeks to determine whether he may vindicate his statutory right, under [Section] 214(d), to choose to have Israel recorded on his birth document as his place of birth."
Moreover, as the Supreme Court deemed the object of Zivotofsky's request a "statutory right," it is likely Zivotofsky will prevail when the case is heard on the merits.
Regardless of the outcome at the trial level, the high court's pronouncement already amounts to a slap at the executive branch. President Barack Obama will feel the sting: Although former Presidents Bill Clinton and George W. Bush likewise did not implement Section 214(d)'s directive to permit "Israel" on the documents of those born in Jerusalem, those presidents were not perceived by the public -- particularly by Jewish and other pro-Israel voters, whose overwhelming support of Obama in 2008 has declined -- to be nearly as anti-Israel as Obama has been seen.
Further, during an election year, the Obama administration will be thrust uncomfortably into the spotlight as it defends its position at trial that Jerusalem is not under Israeli sovereignty.
The defendant, Secretary of State Hillary Clinton, at trial probably will argue the appearance of "Jerusalem, Israel" on official U.S. documents would be tantamount to recognizing Jerusalem as the capital of Israel. The State Department's position historically has been to reserve such recognition until the Israelis and Palestinians have negotiated final national borders.
Clinton has maintained that the executive branch alone has the power to determine whether a U.S. citizen born in Jerusalem may opt to have Israel listed as the place of birth on a passport or other official documents, that Section 214(d) encroaches on the executive's territory and that resolution of the issue is not a matter for the judiciary.
Roberts said constitutional questions on statutes concerning the executive's authority on foreign affairs are similar to constitutional questions in other areas of government.
"It is emphatically the province and duty of the judicial department to say what the law is," Roberts wrote, invoking Marbury vs. Madison, the very case that in 1803 established the principle of judicial review of the actions of the other branches of government.
Roberts continued, "The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the executive by the Constitution."
An exception to this long-standing rule would be an issue that presents a "political question," which may not be determined by the judiciary, the non-political branch of government. A political question contemplates a dispute that clearly and demonstrably should be determined by a particular political department or for which there exists no set of standards for the judiciary to competently resolve the issue. Under either of such circumstances, the matter would be outside the purview of the courts.
Since the high court found the Zivotofsky issue did not qualify as a political question, the trial court must decide only whether the statute in question -- which, incidentally, was enacted to compel the State Department to perform its duty in accordance with a similar directive in the 1995 Jerusalem Embassy Act -- is constitutional.
It would behoove the Obama administration to comply with the law, as the trial court must heed the Supreme Court's pronouncement the addition of "Israel" would affect only Zivotofsky's official U.S. documents and not the fate of U.S. diplomacy in the Middle East.
By acting on his own volition to pre-empt the need for a court to order specific performance (i.e., issuing to Zivotofsky papers that show Israel as his birthplace), Obama would allow approximately 50,000 U.S. citizens born in Jerusalem to obtain similarly updated papers. Such a move might serve to ingratiate him with the pro-Israel community.
Further, the conspicuous absence of friend-of-the-court briefs on behalf of Arab entities would suggest the Arab world may not perceive the addition of "Israel" as quite as great a tempest as the State Department has shoved into its teapot. On this narrow issue, it would seem the Arab world just doesn't care.
(10-699 Zivotofsky vs. Clinton)
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