Interesting question re presidential powers vs. Congress

Marty Lederman marty.lederman at
Tue Aug 23 19:07:45 PDT 2005

Here's the 1995 OLC Opinion concluding that the statute in question is unconstututional:

  ----- Original Message ----- 
  From: DavidEBernstein at 
  To: Conlawprof at 
  Sent: Saturday, August 20, 2005 4:25 PM
  Subject: Interesting question re presidential powers vs. Congress

  From the Israeli paper Ha'aretz (and btw, what is it with presidents signing laws they claim are unconstitutional.  Don't they have an obligation to veto them?)
  A week ago, attorney Nathan Lewin received an answer from the State Department to an appeal he filed on behalf of a resident of Jerusalem, Menachem Zivotofsky. The response did not contain any real surprises: Lewis Yelin, who is representing the State Department and Secretary of State Condoleezza Rice, seeks to dismiss the appeal, which has already been dismissed in the past and is now in the appeal stage. His protracted 
  arguments extend from page 1 to page 34.

  This is a story that has already been told in the past. Zivotofsky, who is only three years old, wants to require the American administration to change the wording in his passport. Because he was born in Jerusalem, the administration is unwilling to record the fact that he was born in Israel, and only the city is noted. The fact is that the United States has never officially recognized Jerusalem as Israel's capital, and its 
  "demand for control" is "the subject of profound dispute." Consequently, the American embassy is located in Tel Aviv. That is why Menachem Zivotofsky is listed as having been born in Jerusalem, but not in Israel.

  The toddler's parents, Ari and Naomi, appealed on his behalf against the secretary of state. They base their appeal on a law passed by Congress in 2002 that determines: "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 shall, 
  upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."

  Nothing, it appears, could be simpler. There is a law. In actual fact, it is a major question around which the most interesting part of the State Department's response to the appeal centers. It is not a political question, but rather a constitutional one. It is not the status of Jerusalem that lies at the focus of this issue, but rather the 
  authority of the president of the United States to conduct his nation's foreign policy. This question is currently the subject of considerable scrutiny, partly in view of the expected appointment of a new justice to the Supreme Court, John G. Roberts Jr., who is considered to be a supporter for strengthening presidential power in relation to the 
  other branches of the American government.

  According to the American constitution, the president is authorized to "receive ambassadors and other state officials" of foreign countries. It is on this that the Supreme Court has based its long-held determination that the decision to recognize other nations belongs to the president because the reception of a foreign ambassador is testimony to that recognition. Pursuant to that, the court decided that the president 
  has "the power to determine policy in relation to questions related to recognition."

  If that is what the constitution says, say the State Department attorneys, it is the president's right not to recognize Jerusalem as part of Israel for the purpose of passport registration. And, they point out, the president himself, when he signed the law that the appellants based their case on, already explicitly noted then that part of 
  it "impermissibly interferes with the president's constitutional authority to conduct the nation's foreign affairs."

  So who decides  the law of Congress or the president's decision? The Federal Court dismissed the suit. Now it is in the appeal stage, and if it is again dismissed, only the Supreme Court can provide relief to little Jerusalem-born Menachem, if it decides to take on this highly charged case.

  There is no clear answer yet regarding the question of the "proper scope of executive power," wrote Prof. David Franklin in the Washington Post in an article on the appointment of Justice Roberts last week, and it "is the most uncertain, and arguably the most significant issue in constitutional law today"

  David E. Bernstein
  Visiting Professor
  University of Michigan School of Law
  George Mason University School of Law


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