I am not thrilled that the Supreme Court granted certiorari in the Jerusalem Passport Case,Zivotofsky v. Kerry. I continue to think the case is non-justiciable (though not for political question grounds rejected by the Court in their prior encounter with the case), for reasons I will explain in a subsequent post. But I’ve increasingly taken a more generous view of the separation of powers merits. Recall that Congress passed a law requiring “Israel” to be listed as the country of birth of those Americans born in Jerusalem, and but a series of presidents maintain refused to so,simply letting it say “Jerusalem, without a country. President Obama claims that complying with the law could maintain disastrous foreign policy consequences, and possibly lead to war (which itself might be a reason to think the decision belongs to Congress).
The case is widely seen as one approximately the recognition power,and it is widely thought that the President has a primary role in things of “recognition.” Recognition comes in two flavors recognizing countries as sovereign entities and the regimes that run them as proper governments. But the Jerusalem flap involves neither. Congress and the President agree that Israel exists and what its valid government is. (And the Executive has been inconsistent in its denials of Jerusalems location.) Nor is this approximately the terms on which recognition is granted. The question here is an unusual one – the President agrees Israel exists, but just does not want to say that Jerusalem is in it. This is more one of border determination – is West Jerusalem in the recognized country of Israel, and in no country,as the executive sometimes maintains. Seen this way, the issue does not topple within the classic recognition paradigm, or we must consider how [...]The post Why the Court should uphold Congress’s power in the Jerusalem Passport case appeared first on The Volokh Conspiracy.
Source: volokh.com