Editorial of The New York Sun | May 8, 2011
It looks like the decades-long standoff between the Congress and the President over the question of Jerusalem may finally be brought to a head, in a lawsuit brought against the Secretary of State of the United States by — only in America —a nine-year-old boy. The Supreme Court last week brushed aside the objections of Mrs. Clinton, who is worried that Congress may win a say in the Jerusalem question, and agreed to the appeal of the child, Menachem Binyamin Zivotofsky, who was born at Jerusalem in 2002 and wants the certificate of birth abroad issued by the American embassy to list his birthplace as Israel.
The State Department is required to accede to such a request, according to a law, part of the Foreign Relations Authorization Act, passed by Congress in 2002. But when President George W. Bush affixed his signature to the law, he issued a so-called signing statement objecting to that requirement, saying it infringed on his constitutional prerogatives as president. President Obama seems to be taking the same position, as Mrs. Clinton is refusing to carry out the law, even though she was in the Senate when it passed the world’s greatest deliberative body by unanimous consent. It has to be the first time a high-level Democrat is supporting Mr. Bush on one of the signing statements they accused him of using too often.
One of the ironies in the case is that the lawyer for Master Zivotofsky, Nathan Lewin, a legendary practitioner at the constitutional bar, won certiorari in the case by arguing, in effect, that it was much less of a big deal than Mrs. Clinton is making it out to be. On its face his petition for a hearing doesn’t ask the Supreme Court to sort out who owns Jerusalem or who gets to decide the question or who runs foreign policy of the United States. Congress, after all, passes laws in respect of all kinds of things that affect foreign policy. What he does suggest is that the Congress has enough power to write the rules for issuing certificates of birth abroad and to require the government to accede to parents’ wishes on the matter.
The justices of the Supreme Court, in their order saying they’d take the case, signaled that they see the standoff between the Congress and the presidency as a central issue. The editor of the Sun, writing about the case in the Wall Street Journal, quoted the Supreme Court’s order, as specifically instructing the lawyers to focus on whether the law “impermissibly infringes the President’s power to recognize foreign sovereigns.” The power to which the Court refers stems from language in Article II of the Constitution, which is the article that creates the presidency and states that the president “shall receive Ambassadors and other public Ministers.”
If the justices are going to dive into this, they could dive deep, because the feuding over this clause goes back to the founding of the Republic. Alexander Hamilton, a tribune of a strong presidency, reckoned in a piece he wrote in 1793 that the language gave the president the right “to decide the obligations of the Nation with regard to foreign Nations.” Thos. Jefferson was so upset by Hamilton’s aggrandizement of executive power, as reported by historian James Roger Sharp, that he “exhorted Madison” to “‘take up your pen . . .and cut him to pieces in the face of the public.’” How the Supreme Court is likely to rule is hard to predict, in part because it’s not so easy a question to sort out ideologically. For in the same sentence of the Constitution in which the president gets the power to receive ambassadors, he also is given the responsibility to “take Care that the Laws be faithfully executed.”
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For our part, we wish the Supreme Court luck. Your editor still remembers back when he was editor of the Forward and Senator Daniel Patrick Moynihan strode into an editorial meeting. The senator sat down and pulled out of his pocket a copy of the internal State Department telephone book. Then he dilated for half an hour over how outrageous it was that it didn’t list Jerusalem as part of Israel, even though Jerusalem is the capital of Israel. That was at the beginning of the long — and so far vain — quest of the Congress to get the embassy moved. The notion that the president is supreme in foreign affairs had a particular allure during the years when the Soviet Union was on the march, President Reagan was in the White House, and Congress was trying to limit the president’s war powers. We’ve been prepared to support a strong president, even when he’s a Democrat. But the clause about faithfully executing the law is no small matter either. And when Congress has acted as unambiguously as it has in respect of the rights of an American born at Jerusalem, it strikes us that the Supreme Court has the opportunity here use the plea of a child to remind us that we are a nation of laws not of men.