SCOTUS opinon on Jerusalem births

[NJlonghorn]

The US Supreme Court issued an interesting opinion today. For decades, the United States has officially remained neutral on the question of whether Jerusalem is part of Israel or an independent Palestine. For this reason, when US citizens are born in Jerusalem, the passport always lists the place of birth as Jerusalem, not Israel.

In 2002, Congress passed a statute requiring the State Department to list "Israel" as the place of birth upon the request of parents of a child born in Jerusalem. Soon thereafter, Menachim Zivotofsky was born in Jerusalem, and his US-citizen parents applied for a US birth certificate listing "Israel" as the place of birth. The State Department refused, asserting that the Constitution gave the President sole authority to recognize foreign nations and that the Congressional Act was unconstitutional.

The Zivotofsky family sued. The Executive Branch, under both Bush and Obama, argued that Congress did not have authority to intrude in the area of recognition of foreign governments. After over a decade of procedural wrangling, the case ended up before the SCOTUS. The Senate (by unanimous consent) and 42 members of the House (24 Republicans, 18 Democrats) filed amicus briefs arguing that Congress did have authority on the issue. I'm not sure why the entire House didn't sign onto the brief, but regardless, the split was Legislative vs. Executive, not Democrat vs. Republican.

The case came to its conclusion this morning. SCOTUS ruled by a 6-3 vote in favor of the Executive Branch over Congress. As is typical of today's court, the split was pretty much along party lines (Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan siding with the Executive, Thomas concurring in the result of the case but on different grounds, and Scalia, Roberts, and Alito dissenting).

 

[ProdigalHorn]

This definitely seemed political, because I haven't really seen a lot of reasons why Congress should have been able to pass that law, unless you argue that the presidential power in this case is vague. Interesting to me that Bush didn't agree with the law, either, and wrote a signing statement along those lines. I suspect it's difficult to separate the question of whether Jerusalem can/should be recognized as part of Israel from the question of who gets to make that decision.

 

[Mr. Deez]

NJ,

I looked at both the majority and dissent (Scalia), and to be honest, though I lean with the majority, i can see some merit to the dissent. What do you think?

 

[NJlonghorn]

I think 8 justices screwed the pooch, and Justice Thomas's concurrence came closest to getting it right. (I never thought you'd hear me saying that!)

The majority assumed that there was a conflict between the powers of the executive and legislative branches, and then discussed whether the President's power was "exclusive" so as to override Congress's power. As Thomas points out, the majority neglected to discuss whether Congress has power in this arena in the first place.

Congress can only act in line with enumerated powers. This broadly includes acts that are necessary and proper to implement such powers, but that doesn't make the powers limited. In this case, there is nothing in the Constitution that authorizes Congress to recognize foreign powers or their boundaries. Thus, only the president had power to act, and the "conflict" that the majority addressed is a false one.

The dissent tries hard to stretch the naturalization power to encompass the power to determine international boundaries. This makes no sense. Whether a person is born a citizen or must be naturalized is completely unrelated to whether his passport says "Israel" or "Jerusalem."