Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
In my column this week for Defining Ideas, I address a forthcoming Supreme Court case that will settle a separation-of-powers dispute between Congress and the State Department. Congress says Jerusalem is part of Israel while the State Department says it isn't. So what is U.S. policy? The high court will decide.
The case centers around Menachem Binyamin Zivotofsky, an American who was born in Jerusalem in 2002. His parents requested that the U.S. State Department list Israel as his birthplace on his passport. But their request was denied: to the State Department, Jerusalem is not regarded as part of Israel or Palestine, but is treated as a neutral city. The Zivotofsky’s are challenging this claim in court. Congress, after all, has passed a statute saying that Jerusalem is part of Israel. So who is right? The State Department or Congress? As I mentioned, this has provoked a serious constitutional debate over separation of powers that next term will land in the lap of the United States Supreme Court.
The Court could feasibly go either way on this question. The arguments on both sides are strong, as I explain in my column. But whatever the eventual outcome, this entire episode should serve as a sober reminder that the Constitution is a fragile and imperfect document that largely survives by the good will and mutual forbearance of our key institutional players.
P.S. Be sure to listen to the latest episode of Law Talk, in which John and I discuss this issue further.
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Jan '11
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
Can any government determine by fiat how another government organizes itself?
Since the State Department is a department of the Executive, is it possible that one national leader can declare how another national entity ought to manage its affairs?
Is the president of the United States so powerful that he can decide conclusively and authoritatively, the correctness of a legitimate foreign government?
Are there other national entities whose leaders that have the same powers?
What are a president's limits in this regard?
Jun '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
Obviously I need to go and follow the links, so forgive the knee-jerk reaction, but ... what business does either the State Department or Congress have in deciding the proper disposition of Jerusalem? Israel is sovereign, the last time I checked. I must just be incredibly naive or something.
Feb '11
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
No. The Supreme Court will not decide. "Is Jerusalem part of Israel?" This is not in the power of the US government to decide.
As Ben Gurion famously said,"It doesn't matter what the goyim say. It matters what the Jews do."
May '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
How could the State Dept. not acknowledge that Jerusalem is part of Israel? Granted, there are some places Jewish Israelis aren't thrilled about hanging about in. However, the last time I was there, you could find a representative of the Israeli military in almost every quarter of the city, not to mention most of the city was comprised of Israeli citizens.
Jan '11
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
I just want to add a tangential point.
The Constitution is an imperfect document, and with that, I completely agree. Here, we have a conflict with something that was clearly a legitimate government function, but the Constitution failed to instruct how to carry it out. The competition is between branches of government over something that (we all agree) at least one ought to do.
My tangential point is that you can't generalize that "a gap in the Constitution means that they just have to fight it out."
In this case, however, the government clearly does have the consent to manage foreign relations, but the Constitution simply isn't clear about the details.
Feb '11
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
And while we are on the subject, let me remind you - as I have posted here before - all the major birthing institutions of Jerusalem are within the area that was under Israeli control even before 1967. (What you folks insist on calling "West Jerusalem.") So this absurd US position has nothing to do with territory which came under Israeli control in 1967. It refers to any part of our eternal capital.
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
Richard I need the crib notes version.
What is the "recognition mechanism" the US has to recognize other sovereignty? Is there one? Is there more than one?
Jun '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
I just wonder if our State Dept. dupes could make a decision on the Al Aqsa Mosque being listed as a temporary, interim structure or not. They need to come to some conclusion on this issue because as time goes on it seems that they are going to have squatters' rights eventually.
Mar '11
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
I may be wrong but I do not believe that it took acts of Congress to recognize the various former Yugoslav republics as sovereign states, or Kosovo, of Slovakia and the Czech Republic, or Georgia, or..., or... So until now the Executive branch has made such decisions. Perhaps it is about time that it was clarified.
Oct '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
At present you have identified the serious flaw in the whole argument. The Obama administration is no more sympathetic to Israel deciding it's capitol than is the State Department.
Richard... "the Constitution is a fragile and imperfect document that largely survives by the good will and mutual forbearance of our key institutional players."
The Left, having little sympathy with your statement above, has salted the playing field with the land mines of "living constitution doctrine". My guess is that the administration is giving their all to defend the State Departments position.
Mar '11
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
raycon
The Obama administration is no more sympathetic to Israel deciding it's capitol than is the State Department.
Sure. But it's not just the Obama administration. If memory serves there have been many calls by Congres during the past 20+ years for the State Department to move the US Embassy in Israel from Tel Aviv to Jerusalem, thereby recognizing the latter as the capital of Israel. These calls have gone unheeded, by Republican and Democratic administrations alike.
Feb '11
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
Ioannis
raycon
The Obama administration is no more sympathetic to Israel deciding it's capitol than is the State Department.
Sure. But it's not just the Obama administration. If memory serves there have been many calls by Congres during the past 20+ years for the State Department to move the US Embassy in Israel from Tel Aviv to Jerusalem, thereby recognizing the latter as the capital of Israel. These calls have gone unheeded, by Republican and Democratic administrations alike. · May 18 at 9:32am
I think those Congressional resolutions included national security exceptions that everyone knew the presidents would exercise.
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
I'll be most interested to hear this decision. I gave birth to all three of my children in Jerusalem, and their American passports all say "Jerusalem" as place of birth with no mention of a country. It drives me crazy.
Mar '11
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
Israel P.
I think those Congressional resolutions included national security exceptions that everyone knew the presidents would exercise. · May 18 at 10:50am
Yes, of course, and the arguments (I am oversimplifying) have been that the status of Jerusalem had to be decided as part of a comprehensive peace treaty and for the US to jump the gun and recognize it as the capital of Israel would be counterproductive, threaten the country's interests in the Middle East and put its role as an "honest broker" into question, etc., etc. Unfortunately, like many other tough decisions in the United States, the people who should be making them are afraid to do so and are hoping instead that the courts will decide for them (all the while lamenting this expanded role of the judiciary). Hence the absurd situation of the US Supreme Court being called to rule on matters of history and geography.
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
I side with the executive on this. At the risk of over-simplification, as Richard points out in his column in Defining Ideas, the Constitution does not give Congress a power to define or regulate passports. Since that is not one of the powers "herein granted" to Congress, then it should fall into the residuum of executive powers which, of course, are not limited by the Constitution by a "herein granted" clause.
Jun '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
May I ask a question, for the sake of clarity? Is the crux of the case really about which branch of the U.S. government has the authority to declare formal recognition of a government or its capital, from a standpoint of legitimacy? (In the sense that we may or may not recognize as legitimate the victors in a coup?)
The connotation of the professor's post and article seems to imply that the U.S. Supreme Court has some role in deciding for the world whether Jerusalem is the capital of Israel. Seems to me that if we recognize the government of Israel as sovereign and legitimate, then the capital is whatever Israel says it is. That a branch of our government is afraid to accept that out of fear of ticking off the Palestinians, that's a different problem.
Edited on May 18, 2011 at 1:06pmMay '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
You should have gone to Tel Aviv, Judith!
How about joint title? An undivided half-interest.......
May '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
Like the Supreme Court ruling that a tomato is a vegetable. Saying it so doesn't make it so.
Sep '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
If you were going to send a letter to the hospital this kid was born in, how would you address it?
Jul '10
Re: Is Jerusalem Part of Israel? The Supreme Court Will Soon Decide
If the US national capital is not in the 50 states, how can Jerusalem be in Israel? Maybe the problem is with the US?
And the official Jerusalem website is jerusalem.muni.il. Notice that .il, the root domain for Israel.
Case closed. The geeks rule again!