Court Time: Courts can rule on Executive-Legislative spat over Jerusalem

March 28, 2012

SCOTUSEditor’s note: The Supreme Court typically hands down quite a few decisions in the month of March, some of these being quite significant.  Throughout the month, we’ll be looking at some of these significant decisions as they are announced.)

Click here for the first post on Kiobel v. Royal Dutch Petroleum.

Click here for the second post on life without parole for a 14 year old.

Click here for the third post on SCOTUS’s ruling against patenting the laws of nature.

Sometimes, the Supreme Court hears and decides on a case that many believe to be of little importance, leading them to wonder why the Court even bothered using its time and resources on it to begin with.

Zivotofsky v. Clinton, decided on Monday, is such a case.

The question in Zivotofsky was whether “Israel” could appear on passports and other official state documents for those born in Jerusalem.

Actually, the issue was whether the judiciary could even decide on that question.

Sounds pretty insignificant, doesn’t it?

In the context of the facts surrounding the case, it’s actually quite a significant question for the Court.

The legal dispute originated in 2002, when Congress enacted the Foreign Relations Authorization Act.

Section 214(d) of the Act, the only section at dispute in Zivotofsky, provides that

“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.”

Constitutional law buffs reading this may recognize the separation of powers issues presented by Section 214(d), but that isn’t why the lawsuit was originally filed.

Instead, it was filed by the parents of Menachem Binyamin Zivotofsky, born in Jerusalem on October 17, 2002, shortly after Section 214(d)’s enactment.

After the U.S. Secretary of State refused to list “Israel” on his official documents, Zivotofsky’s parents filed a complaint on his behalf against the Secretary seeking a permanent injunction ordering the Secretary to identify Zivotofsky’s place of birth as “Jerusalem, Israel.”

What’s the big deal here?

The status of Jerusalem is one of the most significant points of dispute in the Palestinian-Israeli conflict.

Currently, Jerusalem is divided between West Jerusalem, which is occupied by Israelis, and East Jerusalem, which is occupied by Palestinians.

Israel has been sparing no efforts to get international recognition that it has moved its capital from Tel Aviv to Jerusalem – an undivided Jerusalem, though it has thus far been unsuccessful.

What would be the implications of such international recognition?

Without violating international law, Israel would be able to forcibly evict the Palestinians – both Muslim and Christian – from Jerusalem, allowing Jewish Israelis to occupy the entire city.

Given the widespread religious and cultural significance of Jerusalem, it is not surprising that Israel hasn’t found the international support that it’s looking for.

What does this have to do with the Zivotofsky case?

The U.S.’s naming on state documents “Israel” as the place of birth of one born in Jerusalem – as Section 214(d) directs the Executive to do – would amount to a U.S. recognition of Israel’s claim of an undivided Jerusalem as its territory.

Taking such a position would all but torpedo any attempts by the U.S. at a peace agreement between Israelis and Palestinians.

Aside from that, though, there are numerous international bodies – not least among them, the Catholic Church – strongly opposed to a Jerusalem under complete Israeli control.

Accordingly, it’s a very wise stance for the U.S. to refuse to recognize Israel’s claim that it has annexed East Jerusalem, which is why every U.S. President – Republican or Democrat – has taken that stance.

Congress, on the other hand, influenced by the powerful American Israel Public Affairs Committee (AIPAC) lobby, has repeatedly attempted (unsuccessfully) to force the Executive to take the opposite position.

Section 214(d) is one such attempt, which Zivotofsky’s parents sued to enforce.

The lower courts all held that the case was a non-judiciable political question, and dismissed the suit.

The Supreme Court overturned the lower courts, though I wouldn’t necessarily count this as a win for Zivotofsky.

True, the Court did rule that the judiciary could hear Zivotofsky’s case.

However, there was quite a bit of talk in the opinion over Section 214(d)’s constitutionality.

Furthermore, the Court specifically highlighted a concurring opinion from the appeals court that held that Section 214(d) is, in fact, unconstitutional.

All of this discussion seemed to come out of left field, so much so that my guess is that the Court wanted this to be judiciable so that Section 214(d) would be struck down.

So, yes, Zivotofsky technically “won” at the Supreme Court, but it seems likely that he won’t be so lucky on remand.

If Section 214(d) is, in reality, struck down as unconstitutional, will that stop Congress’s similar efforts in the future?

If AIPAC keeps writing the checks, probably not.

So Congress will keep passing unconstitutional legislation and the Executive will continue ignoring it.

Great system of government we have, isn’t it?