Adam Liptak
The New York Times
July 25, 2011 - 12:00am

WASHINGTON — Menachem Zivotofsky was born in Jerusalem. But was he born in Israel?

Congress says yes. In 2002, it directed the State Department to “record the place of birth as Israel” in passports of American children born in Jerusalem if their parents ask.

President George W. Bush signed that bill about three weeks before Menachem was born. But Mr. Bush also said he would not obey it.

(Remember the controversy over Mr. Bush’s flurry of signing statements, in which he expressed reservations and disagreements with acts of Congress even as he signed them into law? This was an example of one.)

The 2002 law, Mr. Bush said, “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”

The status of Jerusalem has long divided not only Israelis and Arabs but also Congress and presidents of both parties. Over Congressional objections, the United States maintains its embassy in Tel Aviv. In his 2002 signing statement, Mr. Bush said, “U.S. policy regarding Jerusalem has not changed.”

This fall, not long after Menachem turns 9, the Supreme Court will hear arguments in his case, which seeks to force the executive branch to follow the 2002 law. The case weaves together generations of conflict in the Middle East, the dueling roles of Congress and the president in the conduct of foreign affairs and the combustible topic of presidential signing statements.

Nathan Lewin, a lawyer for Menachem and his parents, said the point pressed in the lawsuit was a modest one shared by many people. “This client is representative of a large group of American citizens born in Jerusalem who are proud of the fact that they were born in Israel,” he said, “and they want their passports to reflect that fact.”

A federal appeals court in Washington ruled against Menachem, saying the conflict between the branches was the sort of political question not fit for judicial resolution. Judge Harry T. Edwards, in a statement issued when the full appeals court refused to rehear the case, said the ruling “calls into question the role of a federal court in our system of justice.”

Judge Edwards said he would have reached and resolved the conflict between the branches rather than ducking it. He went on to say that he would have ruled for the executive branch.

The Obama administration urged the Supreme Court not to hear an appeal. The ruling below was correct, it said, and the dispute among the appeals court judges did not affect the outcome.

The justices instead not only agreed to hear the case, M.B.Z. v. Clinton, No. 10-699, but also directed the two sides to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns.”

That power is rooted in the constitutional text, but not in an especially obvious way. The courts have said the president’s authority to “receive ambassadors and other public ministers” implies the power to recognize foreign governments.

A recent article in the University of Richmond Law Review argued that the original understanding of the clause concerning ambassadors did not support that leap. “The Constitution, by its terms, does not give the president the power to recognize foreign states or governments,” wrote Robert J. Reinstein, a law professor at Temple University

Mr. Lewin, too, said the courts had placed too much weight on the business about receiving ambassadors, which he said was not a presidential power but only a duty.

In its brief to the court, the administration warned about the consequences of a ruling against executive authority over this area.

Ever since the Truman administration, the brief said, “the United States’ consistent policy has been to recognize no state as having sovereignty over Jerusalem, leaving the issue to be decided by negotiation between the parties to the Arab-Israeli dispute.”

Allowing Congress to interfere, the brief went on, “would critically compromise the United States’ ability to help further the Middle East peace process.”

Mr. Lewin said both the Bush and Obama administrations had blown matters out of proportion.

“The government has been exaggerating the significance of this particular issue,” he said. “This is really a tempest in a teapot created by the State Department.”

In any event, he went on, “whether or not a passport says Jerusalem or alternatively Israel, I think, makes no difference whatsoever.”

Mr. Lewin was particularly critical of Mr. Bush’s announcement that he would sign a law but not comply with part of it.

“You can’t do by signing statement what you can’t do by veto,” he said.

On this point, Mr. Lewin was supported by Representative Anthony D. Weiner, the New York Democrat who resigned last month after lewd Twitter messages came to light. In December, Mr. Weiner filed a supporting brief urging the Supreme Court to use the case to hold unconstitutional the use of “presidential signing statements as a backdoor veto.”

“The court should seize the opportunity to address this constitutional issue — so important, yet otherwise so unlikely to receive judicial scrutiny,” Mr. Weiner’s brief said. “The opportunity may never recur.”


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