• Marc Johnson

Supreme Power


The United States Supreme Court will hear arguments today in a case that has it all for we separation of powers fans. The briefing in the case also features the work of Idaho’s premier Constitutional scholar, Dr. David Adler, the Director of the McClure Center at the University of Idaho.

The case – Zivotofsky v. Clinton – involves questions of presidential power, the authority of Congress to direct the president on issues of foreign policy, the use of “presidential signing statements” made almost routine during the Bush years and a very personal question for 10-year-old Menachem Zivotofsky and his parents – where was he born.

Since 1948, when President Harry Truman recognized the new state of Israel, American presidents have carefully refused to recognize Jerusalem as part of any country. The ancient city, after all, is sacred ground for three great religions. Jews, Muslims and Christians all have a claim to Jerusalem and to keep that issue from clouding the already cloudy issue of an enduring peace in the region, every president since Truman has constructed our foreign policy to reflect the unique nature of Jerusalem.

Congress stepped into the issue in 2002 when it tucked a provision into the Foreign Relations Authorization Act – subsection 214(d) to be precise – that ordered State Department officials to record a U.S. citizen’s place of birth as “Jerusalem, Israel” if the citizen’s legal guardians so request. George W. Bush signed the bill containing subsection 214(d), but also issued one of his frequent “signing statements” saying that as the chief executive responsible for foreign policy he would not enforce the provision.

Ari and Naomi Zivotofsky beg to differ. They are U.S. citizens who live in Israel and maintain dual citizenship. They want their son, Menachem, to have a passport that states, what in their minds is clear; their boy was born in Jerusalem, Israel.

As NPR’s Nina Totenberg reported when she previewed the case: “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.”

The Obama State Department, following the same line of argument of the Bush Administration, argues that the case is both beyond Supreme Court review since it’s clearly a “political question” and also encroaches on presidential power. The briefs for the State Department – that’s why Hillary Clinton is named in the case – say that the Constitution assigns to the president a “broad range of foreign affairs powers,” including recognizing foreign nations and accepting the credentials of ambassadors.

Lawyers for the Zivotofskys argue if the issue of Jerusalem’s status is so important to U.S. foreign policy President Bush should have done the Constitutional thing and just vetoed the bill back in 2002. The case is obviously being watched closely by American Jewish groups.

Dave Adler’s work, by the way, is prominently cited in a brief filed in support of the Zivotofskys by the American Association of Jewish Lawyers and Jurists.

This case is fascinating on many levels, including the obvious tension between the powers of a president and the role of the Congress in the making of foreign policy. It’s also a useful reminder that such big questions often involve the real and personal issues of normal folks.

It will also be fascinating to see if the increasingly activist Roberts Court really get to the point of deciding this case on the details. The case only got to the Supreme Court after lower courts ruled the fundamental issues political in nature. In short, those courts told Congress and the president to go figure this out without bringing the fight to the third branch. Now the nine will decide about Menachem Zivotofsky’s passport and potentially so much more.

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©2019 by Marc C Johnson