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Argument preview: No Mideast peace over this

At 10 a.m. next Monday, the Supreme Court will hold one hour of oral argument on a case that implicates the constitutional authority of all three branches of the government: Zivotofsky, et al., v. Clinton (docket 10-699).  Representing the Zivotofsky family will be Nathan Lewin of the Washington, D.C., law firm of Lewin & Lewin.  Secretary of State Hillary Rodham Clinton will be represented by the U.S. Solicitor General, Donald B. Verrilli, Jr.


A misleadingly simple issue — how to fill out a birth certificate — has mushroomed before the Supreme Court into a historic contest of constitutional power, testing the core authority of all three branches of the national government.   That is what has become of the legal efforts of a couple, pursuing their goal of having their son’s birth certificate show that he was born in Israel.   The Court will be hearing the case three weeks after the boy, Menachem Binyamin Zivotofsky, had his ninth birthday.  Menachem was born in a hospital in West Jerusalem, and the State Department — applying a long-standing policy — insisted that his birth certificate show “Jerusalem” as the place of birth.  Congress has decreed otherwise, and, in doing so, it not only chose up sides in a huge controversy between Israel and its Arab neighbors, but also fundamentally challenged the powers of the President and the Executive Branch.  Now, the issue is whether the Supreme Court will settle that power struggle, or, as lower courts did, keep its hands off.

Since the establishment of the independent state of Israel in 1948, that nation has treated Jerusalem as its national capital.  The city has enormous symbolic importance to the Jewish people.  As Israel’s Foreign Ministry has put it, “Jerusalem, the heart and soul of the Jewish people, plays a central role in Jewish culture, history and religion….Jerusalem has been at the center of Jewish consciousness for over 3,000 years, even before King David made it the capital of his kingdom in 1004 B.C.E.”

Soon after Israel was founded, the city was divided by an armed conflict: Israel retained the western neighborhoods, where the Jewish population was centered, but Arab forces took control of the eastern sector, the center of a Palestinian Arab population but also the location of the Old City, with its holy sites that are revered by a variety of religious faiths — including the “Wailing Wall,” the most holy of Jewish sites.   In the Six Day War with Arab neighbors in 1967, Israel reunited the city’s two sectors, while assuring open access to the holy sites.  In 1980, the Knesset — Israel’s Parliament — formally designated Jerusalem as the capital of the nation.

Because the formal status of Jerusalem has remained a dominant issue in the region, complicating efforts to achieve peace between Israel and its neighbors, the U.S. government — since the administration of President Harry Truman six decades ago — has withheld official recognition of the sovereignty of any government, including Israel’s, over the city.  Government lawyers have told the Supreme Court, in the Zivotofsky case, that “the status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict.”  The government regards that as a matter to be worked out by negotiation, but it has not been worked out.

Ari and Naomi Zivotofsky, both born in the U.S., were living in Israel in 2002 when Menachem was born, at Shaare Zedek Hospital, in Jerusalem’s western sector.   Because of his parents’ citizenship, the boy became a U.S. citizen automatically at birth.   His mother asked U.S. authorities to put “Israel” on his birth certificate and his passport as the place of birth.  By the time she did so, the family had Congress on its side.  However, U.S. officials refused the request, relying upon a policy that instructs State Department employees, in the U.S. and abroad, “do not write Israel or Jordan” as a birthplace in such a situation.  That policy applies no matter which sector in Jerusalem was the actual place of birth.  Both of Menachem’s documents now show “Jerusalem” as that site, and do not mention any nation of birth.

A month before Menachem was born, Congress passed a bill containing various provisions related to Jerusalem.  A part of Section 214 contains a direct order to the State Department: “For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

President George W. Bush could have vetoed the bill, but he opted to sign it into law, presumably because it was a part of a larger bill important to foreign relations in general.  At the same time, though, Mr. Bush issued what is called a “signing statement” interpreting the congressional order not to be an order at all, but merely a piece of legislative advice.  If it were regarded as mandatory, the President said, it 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 President also added: “U.S. policy regarding Jerusalem has not changed.”

The new law deeply upset U.S. diplomats in Jerusalem, who cabled back home their concern because Palestinians were focusing “on what they consider the negative precedent and symbolism of an American law declaring that Israel’s capital is Jerusalem.”

But the new law also emboldened Mrs. Zivotofsky, leading her to ask the U.S. Embassy in Tel Aviv to issue the documents for Menachem in the form that Congress had dictated.  After being rebuffed, the boy, joined by his parents, sued the State Department in September 2003.  In the first round of the case in federal District Court, the judge ruled that the family had no right to sue (they lacked “standing”) because the documents as is were entirely workable for the boy and his family.  But the judge also said that the dispute was “a political question,” not appropriate for the courts to resolve.    The D.C. Circuit Court ruled that the family did have a right to be in court, concluding that Congress gave the boy a new right and the Secretary of State violated it.  It also told the District judge to decide whether the new law was mandatory or advisory, and to fill out the legal record.

U.S. District Judge Gladys Kessler dismissed the case, in 2007, as the Bush Administration had asked.  She ruled that Congress had passed a law implicating the President’s constitutional authority to decide which foreign governments to recognize formally, and she thus concluded that the Zivotofskys’ lawsuit “raises a quintessentially political question which is not justiciable by the courts.”

The D.C. Circuit, in its second ruling in the case, in July 2009. agreed by a 2-1 vote with Judge Kessler that the Zivotofsky family’s claim fell outside the federal courts’ jurisdiction.  “Lacking authority to consider the case, we do not address the merits of the parties’ other arguments,” it said.  On a 6-3 vote on June 29, 2010, the en banc D.C. Circuit refused to reconsider the case.  Senior Circuit Judge Harry T. Edwards, who had dissented in the panel decision but was not eligible to vote on the en banc issue, issued a statement, contending that “there is much more at stake in this case than just the personal claim raised by the Zivotofskys.  This case calls into question the role of a federal court in our system of justice.  And it concerns the responsibility of a federal court to ensure that parties who are properly before the court are heard and afforded a just and coherent answer to their claims.”

(The “political question” doctrine on which the lower courts here relied is a theory that limits judicial review, on the premise that a lawsuit that seeks to bring the courts into the midst of a dispute over powers that the Constitution assigns to one or both of the “political” branches — Congress and the Presidency — must be left to those branches to resolve.   Its most important source is the Supreme Court’s 1962 decision in Baker v. Carr.  The doctrine existed before that decision, but, there, the Court for the first time spelled out the elements of a “political question.”  Interestingly, in that decision, the Court allowed the courts to get involved in the constitutionality of election redistricting, saying it was not such a question.  The phrase as used in the courts does not relate to partisan politics as such, but rather to the notion that Congress and the Presidency are filled by election, unlike the appointed judiciary.)

Out of options in the lower courts and within the government, the Zivotofsky family took their case on to the Supreme Court a year ago.

Petition for Certiorari

Although the family’s appeal to the Justices sought review only of the “political question” bar to their lawsuit, the tightly written 18-page petition (only nine pages of argument) contained within it the whole of the constitutional controversy: the power of Congress to legislate, the power of the President to resist and, in effect, to disobey a supposedly binding law, and the power of the courts to straighten it all out (in the end, of course, in favor of a proper birth certificate for Menachem Zivotofsky). 

And certainly not the least interesting facet of the petition is its broadside attack on Presidents’ use of “signing statements,” especially in view of the controversy that was stirred up by the unprecedentedly frequent use of that approach during the White House years of George W. Bush. 

Of course, the Court would not get to any of those other issues if it were to agree with the lower courts — and with the Obama Administration, which has now continued the government opposition to the Zivotofskys’ claim — that the case must be dismissed because it raises a “political question.”  And, even if it did rule that the lawsuit could proceed in the courts, it would have the option of stopping with that issue, and leaving other questions to be decided, in the first instance, in those courts.

Cleverly, the petition sought to get around that doctrine by arguing that the lawsuit did not raise a “political question” at all.  The Zivotofskys, it said, were not asking the courts to resolve the status of Jerusalem, but only to enforce an act of Congress.  If there is any “political question” in this case, the petition went on, that has been resolved by a “political” branch: Congress.

The petition also argued that there is a conflict among the federal Circuit Courts on how to interpret the “political question” doctrine, and it claimed that the D.C. Circuit takes too expansive a view of that concept.   The “broad sweep” by the D.C. Circuit, it argued, “conflicts with the more discriminating analysis in the opinions of other circuits.”   Just because a lawsuit raises an issue bearing on foreign relations, it asserted, is not enough to require its dismissal.

The concluding portion of the document is its attack on presidential “signing statements” — an issue on which there apparently is no precedent in federal jurisprudence.  While the Obama Administration has argued that there are precedents that support the President’s power to avoid complying with a law deemed to infringe on Executive powers, there appears to be no ruling yet on the effect of a presidential “signing statement” in determining whether a law is valid or not, or, as in this case, whether the President is right in determining whether a law is binding or not.  

The petition argued straightforwardly that Presidents simply may not pick and choose which parts of a “duly enacted law” they will execute.   A “signing statement,” the petition contended, is a form of veto without giving Congress the opportunity to override it.   The petition, though, conceded that this would be an issue for the lower courts first, if the case is allowed to proceed.

The petition’s progress through the Supreme Court was slowed somewhat, because the Administration obtained three extensions of the deadline for filing its response.   When it did respond, it argued that there was no conflict in the Circuit Courts, that there is no doubt that the control over the contents of Menachem’s documents was solely within Executive Branch authority, that it is already clear that what Congress did is unconstitutional, and that, if the law is invalid, it would be struck down by a court without ever needing even to refer to a presidential signing statement.

The Supreme Court granted review on May 2, accepting the issue on the “political question” doctrine as stated in the Zivotofskys’ petition.  But, in a signal that it might rule more broadly in the end, the Court added a new question of its own.  That question is whether Congress, in passing the command to the State Department about how it was to handle the “Jerusalem or Israel” issue, had done something that “impermissibly infringes the President’s power to recognize foreign sovereigns.”

There are at least two ways to read what the Court had in mind in adding that question: it may regard that as a background question to whether the Constitution does assign the power at issue solely to the Executive Branch, and thus the added inquiry does relate only to the “political question” dispute, or, perhaps more likely, it may regard that as an indication that the Court feels it must rule on the constitutionality of the legislation itself — an alternative way to end the dispute about Menachem’s documents by ruling directly on the merits of the separation-of-powers issue.   The second question appears to have been prompted by the remarks of Senior Judge Edwards in the D.C. Circuit, who would not have dismissed the case on “political question” grounds, but instead would have struck down the congressional measure.   The wording the Court chose for its added question, in fact, is quite close to the phrasing used by Judge Edwards, substituting “infringes” for “intrudes on” presidential power.

Anthony Weiner, who at the time was a Democratic member of the House from New York’s 9th District for Brooklyn and Queens (he has since resigned over an Internet sex scandal), filed an amicus brief urging the Court to hear the case, and arguing that he had an institutional interest in the proper allocation of authority between the political branches.

Merits Briefs

The Zivotofskys’ brief on the merits is, appropriately, a far more comprehensive document than the spare petition for certiorari.   On the facts, for example, it sought to show that the State Department policy on place-of-birth designation has been far from consistent, that the global community — and the State Department — treat place-of-birth designations as only a matter of identification rather than one of diplomatic significance, and that the practical outcome of the case is limited to perhaps only 50,000 U.S. citizens born in Jerusalem.   In recounting how the State Department has actually operated its policy, the brief threw in a sharp new accusation: that the Department follows the policy on Jerusalem births solely to gratify Arab sensibilities, barring the privilege only to those — overwhelmingly Jewish — who have “a religious attachment to the land.”

On the merits, the family brief again stressed the argument that the Court does not have to decide the status of Jerusalem, adding that suggestions that the Court must do so are intended to intimidate the Justices.   The only question, it insisted, is a separation-of-powers argument of a kind the courts are fully competent to decide: did Congress have the constitutional power to pass the place-of-birth law for citizens born abroad?  Suggesting the answer, the brief contended that the President does not have exclusive, but only shared, power in the realm of foreign relations, and that, in any event, the feared harm to foreign policy is “greatly exaggerated.”

In addition, the brief asserted that, whatever power the President may claim to recognize foreign governments, that power does not extend to deciding which city or territory is within a foreign government’s boundaries.  That part of the argument sought to address the question added by the Court.  Presidential power, it contended, is at its lowest point when it is used in direct defiance of formal action by Congress.

The brief challenged the government’s reliance upon the Baker v. Carr formulation of the elements of a “political question,” contending that those factors “apply only when a court is asked to resolve a case in which Congress has failed to set standards.”   The place-of-birth bill has no such problem, it indicated.   And the brief went on to characterize, as a legal argument, its claim that the State Department has engaged in discriminatory treatment of Jewish citizens born in Jerusalem.

On the presidential “signing statement” issue, the family brief flatly contended that the President’s only authority to refuse to follow a properly passed federal law is to veto it, and give Congress the chance to override his judgment.   Since President Bush did not veto the 2002 law regarding Israel as a birthplace, the brief said, he was obliged to carry out the mandate laid down by Congress.

(At the level of pure trivia, the Clinton family — the current Secretary of State and her husband, the former President — are both targets of the brief’s constitutional arguments about Executive Branch authority.  Mrs. Clinton, of course, is the sole official sued in the Zivotofsky case, but the Supreme Court’s 1998 decision in Clinton v. New York City, involving the former President while he was in office, is cited as the primary precedent against allowing a President to act outside the normal legislative process.  In that ruling, the Court struck down the budgetary “line-item veto” that President Clinton coveted, and that Congress gave him.  That precedent, the family brief said, established that Presidents may only register their objections to enacted legislation by using a veto that Congress has a chance to override.)

The government’s brief for Secretary of State Clinton turned first to the question the Court added — the constitutionality of the 2002 law directing the Secretary to issue birth documents and passports designating Israel as the place of birth.  The “exclusive power” that the Executive has under the Constitution, the brief contended, involves not only the power to recognize foreign governments, but also to “determine the extent of their territorial sovereignty.”  The latter authority, the document said, can be traced to an 1839 Supreme Court ruling, Williams v. Suffolk Insurance Co.

Those powers, it went on, necessarily include the power to decide what goes into passports that have a role in the operation of foreign policy.  “A passport,” the brief said, “is an official instrument of foreign policy through which the United States addresses foreign nations.”   While Congress has the authority to enact passport legislation, the government said, it may not do so by inhibiting the President’s “exclusive authority to determine the content of passports as it relates to United States foreign policy, including determinations concerning the recognition of foreign states and their territorial sovereignty.”

The State Department policy at issue in this case, the government argued, is directly related to and carries out the President’s decision not to recognize any nation as having sovereign power over the city of Jerusalem.

Turning to the “political question” doctrine, the Justice Department said that it should not make a difference to that doctrine whether a challenger to a government policy is relying upon a right that has been conferred by Congress.  With a challenger relying upon such a claimed right, the brief said, a court must then examine it carefully to determine whether a decision on it would draw the judiciary into a realm that the Constitution has assigned elsewhere in government.

Examining the 2002 place-of-birth law, the government brief said it is clearly an unconstitutional attempt to “define the United States recognition policy.”

In a summary paragraph at the end of its brief, the government repeated its earlier argument that the Court need not rule upon the validity of presidential “signing statements,” or whether the President’s only option when the Executive disagrees with enacted legislation is to cast a formal veto and return the bill to Congress.

The Zivotofskys are supported by a variety of Jewish or Zionist organizations, filing three of the five amici briefs on that side of the case.   Most impressively, the Zivotofskys drew the support of 28 U.S. Senators, of both parties and from across the ideological spectrum, and a bipartisan group of 11 members of the House, saying that they joined the case to help mount a strong defense of Congress’s authority to share in government policy toward passports and the rights of foreign-born U.S. citizens, and a fervent defense of the particular law at issue, which, it noted, passed overwhelmingly in each chamber.   Also on that side of the case is a group called “the Lawfare Project,” advising the Court that part of the group’s mission is to protect Israel from “legal censure or legal disadvantage on a basis not applied to other nations.”

The sole amicus filing on the side of the government is a brief by a group named Americans for Peace Now, described as an “American Jewish, Zionist organization” that is committed to a defense of Israel’s right to survive in the world community.  The brief warned sternly against any deviation from U.S. policy of refusing to recognize any sovereign power over any part of Jerusalem, unless that is accomplished by a “negotiated peace agreement.”   The brief agreed that the 2002 law is invalid, but it confined its own arguments to the “political question” issue.


When this case was in the D.C. Circuit, Senior Judge Edwards suggested that the Zivotofsky plea would fail either way — by the panel majority view that this was a “political question” beyond judicial competence, or by his view that Congress had acted unconstitutionally in trying to control what Menachem’s birth certificate and passport said.  That may well be the outcome, but that does not mean this case is going to come to an end without establishing anything of constitutional importance.

To decide either issue that is before them, the Justices must delve into the very difficult question of how the Constitution allots authority in the field of foreign relations.  Congress acted as it did in 2002 because it genuinely (and overwhelmingly, in both houses) believed that it had a role to play in determining the rights of foreign-born Americans, and, at least implicitly, in forcing the government’s hand on the sovereign claims of the state of Israel.  And the Bush and Obama Administrations have acted as if they believed, just as sincerely, that this dispute is all about recognition of foreign governments, and they are not about to share that authority willingly.   In other words, one of the political branches seems likely to lose this constitutional conflict, and the impact might well have an impact beyond the 50,000 citizens born in Jerusalem whose legal rights are at stake.

Looming over the case, in this respect, is how the combatants in the ongoing Arab-Israeli conflict will interpret whatever the Supreme Court does.  The tensions in that region are so high that almost any development, even hinting at an America leaning one way or the other, is bound to be interpreted as support for one side or the other, even if not intended that way.  The Court, of course, cannot do anything about that: the diligent pursuit of the Zivotofskys of their cause, with a seasoned and crafty advocate, Nathan Lewin, making their case, has put this high-stakes case on an internationally prominent stage, and the Court is in the middle of the drama.

If the Court finds that the case is a proper one for it, and the lower courts to handle, its encounter then with the constitutionality of the 2002 law would raise all of the same stakes, under the Constitution and in geopolitics.   The domestic governmental effect, again, would be that one of the political branches has to lose, either in the Court or, on remand, in a lower court.   And, again, foreign observers, and propagandists, will draw their own conclusions about what it means for Mideast diplomacy.  And, again, the Court can do nothing about that.

This, then, is not a case for the faint-hearted.





















Recommended Citation: Lyle Denniston, Argument preview: No Mideast peace over this, SCOTUSblog (Nov. 4, 2011, 1:05 AM),