More International Law at the U.S. Supreme Court: Where is Jerusalem?
I don’t mean to interrupt this great discussion of the “International Law in the Supreme Court” Book Discussion (to which I also made a very small contribution). But I can’t resist a brief note on a case this term that promises to bring international law back to the Supreme Court, if only indirectly. Here is the NYT write-up:
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.”
This case nicely brings into focus the idea of an “exclusive presidential power” under the Constitution (which I’ve argued for here) and the power of Congress. If there is any presidential power that has received broad support from across the political spectrum (and Supreme Court precedent), it has got to be the president’s power to recognize foreign governments. But is it enough to override an explicit congressional directive? The administration is arguing for an exclusive presidential power, essentially endorsing President Bush’s then-controversial signing statement announcing his refusal to follow this part of the statute. This case could go in many different directions, so it will be worth following.