Ever since the founding of Israel in 1948, the U.S. has taken the position that no country has sovereignty over Jerusalem until its status is negotiated in a Middle East peace deal. Israel's supporters in Congress, however, have tried to force a different policy, passing legislation that would move the U.S. embassy from Tel Aviv to Jerusalem and require the State Department to allow U.S. citizens born in Jerusalem to list Israel as their place of birth on their passports.There are very few cases where the President can act in opposition to a statute, but — as I suspect the Court will have to say — this is one of them.
The Bush administration and the Obama administration both refused to do so, contending that the passport mandate unconstitutionally infringes on the president's foreign policy powers.
November 3, 2014
"There are very few cases I can ever think of where the Court has said the President can act contrary to a statute."
Said Justice Breyer, 3 years ago, in the oral argument of a case that has returned to the Supreme Court for oral argument today.
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42 comments:
First I think the law is a mistake. Congress should not muddle in diplomacy.
However, I also think the US should recognize Jerusalem as the capital of Israel. That choice is up to them, not us.
If it's unconstitutional law, what's the President's responsibility to enforce it?
Why are people still carrying passports? They not only require a photo identification but also completion of a process that are both an excessive burden. The precedents of Democrat vs "We the People" and Hickox vs "We the People" establish that neither positive identification requirements nor security (e.g. medical) screenings are legally permissible and, in fact, may be construed as racist.
I for one love it when our Congressmen place the well-being of another nation above the one they've nominally been elected to represent.
About the only thing going for it is it's one of the few things with strong bi-partisan support...
America last!
Are we back to basics. Who governs in a small small part of a dusty outback city that has no apparent value still commands the attention of world governments to get it right.
Interestingly people born in Jerusalem don't name a country they are from, but will say they are from Jerusalem.
For a bill to become a statute doesn't a president have to sign the legislation after it's passed by congress?
There will be no "peace deal" as the teachings of Islam do not allow of binding treaties with Jews or Israel. (Treaties with others may be abrogated, by Muslims and without notice, at any time it suits them to do so.)
I don't see where in the Constitution the congress has the power to make such a law, so the law should be declared unconstitutional.
I just wish that reasoning was applied to the rest of the laws that they pass.
James Pawlak,
Not disagreeing with you at all, but would point out that seemed to be a very similar policy for successive US administrations in dealing with the American Indians.
--b
EDH said...
For a bill to become a statute doesn't a president have to sign the legislation after it's passed by congress?
No. If the President neither signs nor vetos the bill then after 10 days ( not counting Sundays ) the bill becomes law, unless Congress has adjourned in the meantime, in which case the bill is dead.
In this case Clinton did not want the bill to become law, but did not veto it because Congress had the votes to easily override a veto, so Clinton did nothing.
Since when has Obama cared about what a statute says? He just makes up crap as he goes.
Is this foreshadowing the ruling on subsidies in states where the Feds set up exchanges? The statue text is clear; the IRS originally ruled that states will not receive subsidies if the Feds set up the exchanges. Assuming that the SC takes the case, is this a 6-3 decision, with Breyer joining Roberts, Alito, Scalia, Thomas, and Kennedy to void subsidies on Federal exchanges?
And if the subsidies are voided, do the insurance companies get the money anyway through the risk corridors?
require the State Department to allow U.S. citizens born in Jerusalem to list Israel as their place of birth on their passports.
Got that? This isn't a rule that everyone born in Jerusalem must have "Israel" stated as place of birth, but only that those who do want "Israel" so stated can have it.
Possible compromise: Allow "Israel," but also "Palestinian Authority"?
Didn't remember that adjournment was needed for pocket veto.
What harm has this poor kid suffered to be deserving of two trips to the U.S. Supreme Court?
"Since when has Obama cared about what a statute says? He just makes up crap as he goes."
Bush made up the same "crap" on this one.
ignorance is bliss said: "No. If the President neither signs nor vetos the bill then after 10 days ( not counting Sundays ) the bill becomes law, unless Congress has adjourned in the meantime, in which case the bill is dead.
In this case Clinton did not want the bill to become law, but did not veto it because Congress had the votes to easily override a veto, so Clinton did nothing."
Except the law at issue was signed into law by President Bush in 2002. So, wrong law.
jeff said...
...So, wrong law.
I can't get to the npr story. Could you point to the law in question? I was assuming it was the Jerusalem Embassy Act of 1995.
Could you point me to the actual law in question?
"Former Ottoman Empire," "U.N. Palestinian Mandate," "Never-Never Land," and so on.
Okay, I see now that the same provision was included in Foreign Relations Authorization Act, Fiscal Year 2003, section 214.
This one was signed by G. W. Bush.
Hagar said...
"Former Ottoman Empire," "U.N. Palestinian Mandate," "Never-Never Land," and so on.
Islamic State in Syria and the Levant.
The Constitution gives the Congress the explicit power to "establish uniform rule of naturalization" in Article 1, section 8 and it gives the President power over foreign policy in Article 2. So there is a conflict in powers on this issue - it's not black and white. (especially over the passport issue)
Let the courts flip a coin.
Keep up the nonsense, and that could happen.
Israel is not the 51st state of the United States. It is a foreign country.
The middle east would be better off if Israel ran the whole place. The world would be safer. The people of the region would have more freedom and be more prosperous.
Some people seem to want Israel gone though. They are mostly on the left. Why is that?
I’m generally supportive of Israel (as I am our other allies) but I’d prefer Congress didn’t interject itself by changing our laws regarding passport for what appears to be symbolic reasons and undercut the President’s authority to conduct foreign policy. Having said that though, it appears to be a lawfully enacted statute and I’m not comfortable with the President openly refusing to carry it out. I have no opinion on whether the statute is unconstitutional but the presumption is that statutes are constitutional unless and until the courts say otherwise.
If I were an Israeli, I would resent New Yorkers continually interfering with the government of my country.
"If I were an Israeli, I would resent New Yorkers continually interfering with the government of my country."
But you probably wouldn't resent that the reason you have a country at all is become the US has stood up for you over the years and protected you from all kinds of threats. Imagine if you had to depend on the Europeans for your safety. Hah.
"There are very few cases where the President can act in opposition to a statute, but — as I suspect the Court will have to say — this is one of them."
Interesting choice of words, "act in opposition to a statute". If the congress passes a law requiring that private employers provide insurance for their employees or pay a monetary penalty, and further directing that the IRS shall collect that penalty, and the IRS, at the President's instruction, says, "Naw, we are not going to do that", has the President acted in opposition to a statute?
I would like to know why the US has to kowtow to the Arabs over the question of Jerusalem. What other country in the world that we have diplomatic relationships do we decide which is and which isn't that country's capital city?
For the first 30 years of its existence, Israel was generally crosswise with Washington policy - most notably in the Suez debacle of 1956 - and thus got scant U.S. Government support. Yet Israel did quite well for itself in that time - all those famous wars, remember? - and even built their own jet fighter planes.
The reliance on the U.S. for money and military hardware we see today is mostly Ariel Sharon's doing, and has more to do with Sharon's Likud and his vision of the world than Israel as such.
It is very debatable whether this has been, or is, good for the U.S., and it may well eventually prove disastrous for Israel.
Indeed, cubanbob. Everywhere else we leave it to the citzens of those countries to sort it out for themselves.
Hagar said...
"For the first 30 years of its existence, Israel was generally crosswise with Washington policy - most notably in the Suez debacle of 1956 - and thus got scant U.S. Government support."
I guess that depends on what you mean by "support". Certainly, the Israelis were very grateful for Truman's early recognition of their country.
Hagar our involvement with Israel in terms of the US being an arms supplier really only started 20 years after Israel's founding instead of 30 and that is after the Arabs for the most part became Soviet clients and Israel became useful as an 'aircraft' carrier in the event there would be a Soviet move on the Saudi's-a back up insurance plan if necessary. Then Israel became useful as a testbed against Soviet equipment under combat conditions and the Israelis providing the US captured Soviet equipment so there was and still is a beneficial arrangement for the US. While its true that Israel gets about $3bn a year in US military assistance all or nearly all of that money is spent back in the US so in actuality it is really giving US military contractors work beyond what the pentagon spends to help keep some production lines open.
On the other hand the US provides the Palestinians-Hamas, nearly $1bn a year in exchange for what? Perhaps we should simply stop funding the Palestinians and stop spending the many times the billions given to Israel defending the Saudi's, Kuwait's, Qataris and the rest of the Arab ingrates and supporters of our enemies. If those bastards want our support it should be on our terms.
Nixon said it best: "If the President does it, it's not illegal."
It could also be called the "Obama Doctrine".
I think you are making my argument.
I do not remember any Israeli prime minister prior to Sharon voicing his or her vision of israel's future as a vast military encampment and a test bed for U.S. military-industrial complex research and development.
Hagar said...
I think you are making my argument.
I do not remember any Israeli prime minister prior to Sharon voicing his or her vision of israel's future as a vast military encampment and a test bed for U.S. military-industrial complex research and development.
11/3/14, 1:45 PM
Actually it started with LBJ when the US started selling combats jets to Israel when the French robbed the Israelis after the 1967 war and the Israelis started providing the US captured Soviet equipment. True we could cut Israel off in terms of military aid but then the Israelis would have to figure out a way to maintain their defense capabilities and the most likely partners and funders would be most likely not be America's best buds. Not personal, just business. Just like the Europeans who screw the US on a regular basis. While that may appear to be a threat it is no more of a threat than what we already put up with from Arabs and Muslims that we aid right now and unlike them the Israelis are only trying to defend themselves and not like those said Arabs and Muslim countries that actively aiding and abetting our enemies.
Yep. If the President is exercising his Article II powers directly, he is indeed "above the law" -- not subject to any mere statute. Nor can the Supreme Court decide whether or not he is exercising his Article II powers, any more than the President can direct the Supreme Court on interpreting its Article III powers.
It's a God-damned mess, this seperation of powers thing. You can see why well-meaning people who prefer orderliness and trains on time find it all a nuisance, and wish there were some clear chain of authority. Like, say, from Caesar on down.
Ignorance is Bliss said...
I don't see where in the Constitution the congress has the power to make such a law, so the law should be declared unconstitutional.
I just wish that reasoning was applied to the rest of the laws that they pass.
11/3/14, 10:04 AM
From your screen to God's eye!
When we are not, as a country, in a time of crisis, I very much appreciate Washington gridlock. When we are in a time of crisis, I like it only a little less.
Passing laws was not ever meant to be easy or simple. The grind was designed to minimize the creation of bad law. Government has worked tirelessly to weaken those safeguards starting the day after the republic was formed.
I was at the oral argument today, and the impression in the courtroom was that this case will come down to Kennedy's vote. Breyer was signaling a strong inclination to invalidate the statute, as was Kagan and (less clearly) Sotomayor. But Scalia, Alito and the Chief were all signaling the opposite. Kennedy seemed to think that the executive could have avoided the whole fuss -- he repeatedly came back to his hypo about a disclaimer on the passport that would resolve any concern about an implied change in position.
Ginsburg was harder to read, and Thomas said nothing. But, if I were predicting the result, it would be 5 to 4, with the Catholics out voting the Jewish justices to uphold the statute. It also helped that the US Senate filed an amicus brief on behalf of petitioner, arguing that this passport regulation has nothing to do with diplomatic recognition. That was not enough for Breyer, but sounded like it worked for Kennedy
It was quite interesting to watch the court in action. Equally impressive was Alyza Lewin, who argued for petitioner. I have worked on many cases with her father, Nat Lewin, over the years. Nat argued this case on its first trip to the SCOTUS, and Alyza made her first appellate argument in any court today. My guess is that she'll win it.
It is an interesting question. None of the enumerated powers of either the Executive or Legislative branches really cover responsibility for this sort of thing.
Leaving it entirely in the President's hands seems iffy. If Presidents can unilaterally choose not to recognize the claims of other governments, doesn't that undermine the treaty power? Take NATO, for example -- could a President react to an invasion of Germany by declaring that the invaded territory wasn't *really* part of Germany, and thus the United States was not bound by treaty to help defend it?
Thanks for the description, Richard.
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