on Nov 7, 2011 at 9:06 am
Federal law requires the Secretary of State to record the birthplace of an individual born in Jerusalem as “Israel,” which is at odds with State Department policy. The question for the Court in M.B.Z. v. Clinton, which will be argued today, is whether that law interferes with the President’s constitutional authority to recognize foreign nations, and whether that dispute between the branches is a political question beyond the power of the courts to decide.
The case is as much about legal history as current policy. The parties’ briefs are chock full of interesting discussions about the Framer’s original intent, including Alexander Hamilton’s shifting views on this topic and the Washington administration’s take on the question.
In a well-timed law review article in the Richmond Law Review, Professor Robert Reinstein engages in an in-depth analysis of the question and concludes that the Framers did not intend to give the President plenary authority to recognize foreign sovereigns. His article is cited in both parties’ briefs, and may well help to guide the Supreme Court on the question of the Constitution’s original meaning.