New York Post..
25 July '13..
Prime Minister Menachem Begin of Israel famously used to warn against deciding the question of Jerusalem in the United States Congress. Nor, it looks like he should have added, in the United States Court of Appeals for the District of Columbia Circuit.
That court, the second most important one in the country, has just ruled that only the president can decide the question of Jerusalem. Congress, it decided, has no standing in deciding how to list Jerusalem in documents issued by the US government.
The decision is the latest chapter in one of the most amazing cases now in the American courts. It involves an infant who challenged the State Department, which doesn’t want to bow to a law that says that, when asked, it must issue to an American born in Jerusalem a passport listing his place of birth as “Israel.”
The law was passed 352 to 73 in the House and unanimously in the Senate. But when President George W. Bush signed it, he issued one of his most famous — or infamous — signing statements, saying he wouldn’t enforce the passport part of it because it infringed on his presidential powers. President Obama takes the same position.
They are being challenged by the family of Menachem Binyamin Zivotofsky, who was born in Jerusalem in 2002. When the State Department refused to issue a passport saying he’d been born in Israel, his parents sued to enforce the rights the law had established.
At first the courts tried to dodge the issue, saying it was a political matter and “non-justiciable.” The Supreme Court shut that down emphatically a year ago — noting that the courts weren’t being asked to decide whether Jerusalem was part of Israel, but only to decide what, if any, role the Congress gets to play in deciding that question.
It was one of the liveliest hearings at the Supreme Court in years. At one point, Justice Sonia Sotomayor asked the big question: What would happen if listing the infant’s birthplace as being in Israel were to lead to war?
“Let’s assume,” she said, “that a dozen nations said this designation on the passport is — we view as an act of war; if the United States is going to do this, we’re going to view it as an act of war. Would that then permit the president to ignore Congress . . .?”
The question was left hanging in the air. The answer is — or ought to be — that if the justices are worried about the possibility of war, then the decision certainly goes to the Congress. For it is to Congress that the Constitution delegates the power to declare war in the first place.
Instead, by a vote of eight to one, the justices deferred the question. In a strongly worded opinion, Chief Justice John Roberts sent the matter back to the DC circuit with instructions to decide who has the power. That’s the ruling it just issued.
The lawyer for Zivotofsky is Nathan Lewin, a legendary figure in constitutional law; he promptly said he’d make a second appeal to the Supreme Court.
I wish him luck. The idea that the Congress of the United States should be without any standing in foreign policy makes no sense.
At one point, Justice Antonin Scalia signaled that at least he was onto the State Department’s game. The president may be the sole “instrument” of foreign policy, Scalia noted said. But there is “certainly room” for the idea that Congress can say “what the country’s instrument is supposed to do.”
Especially when the resistance to admitting that Jerusalem is part of Israel clearly isn’t so much what any president thinks, but just more of the State Department’s decades-long hostility to the idea of a Jewish state in the land of Israel. Plain and simple.
Zivotofsky was an infant when this campaign began. His lawyer expressed the hope that it can yet be resolved in his favor by the time he celebrates his bar mitzvah.
Lipsky@nysun.com
Link: http://www.nypost.com/p/news/opinion/opedcolumnists/an_infant_the_state_department_5ngp2aDWphPrk4fzwQ1OVK
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