Interesting question re presidential powers vs. Congress

[Mark Tushnet]

A quick look at the opinion indicates that it argues that the provision 
requiring the relocation of the embassy is unconstitutional, but it 
doesn't say anything about the requirement at issue here -- that 
passports of U.S. citizens born in Jerusalem state that they were born 
in Israel.  It's a step -- one that could be taken, given the 
(quasi-diplomatic) functions of passports (but see the discussion of 
those limited functions in Kent. etc.) -- from saying that the 
president's power to communicate with foreign governments includes the 
power to select such communications will occur, to saying that the 
president's power over foreign affairs (in its exclusive aspect) makes 
unconstitutional a congressional statute specifying this particular 
aspect of what goes into a passport.

Marty Lederman wrote:

> Here's the 1995 OLC Opinion concluding that the statute in question is 
> unconstututional:
>  
> http://www.usdoj.gov/olc/s770.16.htm
>  
>
>     ----- Original Message -----
>     From: DavidEBernstein at aol.com <mailto:DavidEBernstein at aol.com>
>     To: Conlawprof at lists.ucla.edu <mailto:Conlawprof at lists.ucla.edu>
>     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
>     Professor
>     George Mason University School of Law
>     http://mason.gmu.edu/~dbernste
>
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