Many of us will be watching the Supreme Court of the United States Monday, when the justices are scheduled to hear one of those only-in-America cases, where a child is challenging one of the most powerful of the government’s secretaries. Rick Richman of Jewish Current Issues has written about it today on Contentions. The youngster in the case is a nine-year-old American boy, Menachem Binyamin Zivotofsky. The secretary he is suing is Hillary Clinton. He is asking the court to order her to carry out a law requiring the state department accede to his request that the papers memorializing his birth stating that, when he was born at Shaare Zedeck hospital in the western part Jerusalem, the country he was born in was Israel.
Mrs. Clinton actually voted for the law before she refused to carry it out. That was back in 2002, when she was a member of the Senate, which passed the law on a unanimous vote. Now she is claiming that it would infringe on the powers of the president to carry out the foreign policy of the United States. Mrs. Clinton is not alone. President George W. Bush issued a signing statement when he affixed his signature to the law, making the same dissent. The case has divided pro-Israel conservatives, some of whom have spent years trying to keep a timorous Congress from placing restrictions on presidents seeking to carry out a strong foreign policy. This was often the case in respect of, say, the Soviet.
In the case of Israel today, however, the shoe is on the other foot, meaning that the president is the timorous one and the Congress is the branch of the government pressing for a strong foreign policy. The notion that the case has any impact on foreign policy is itself in dispute, however. Master Zivitofsky’s lawyer, Nathan Lewin, won a hearing at the Supreme Court precisely by arguing that all the handwringing by Mrs. Clinton over the impact of the case is, in effect, for naught and that the effect on foreign policy of the section of the law that gives the youngster the right to a birth certificate stating the country he was born in is “trivial.”
It may be, though, that the justices will want to delve more thoroughly into the question of which branch has the upper hand constitutionally in respect of foreign policy. If that happens, get set for a marvelous argument. The lawyers for Mrs. Clinton have tried to suggest that the historical record favors the upper hand in foreign affairs going to the executive. But Mr. Lewin has placed before the judges an memorable brief, featuring such figures as Geo. Washington, John Marshall, Alex. Hamilton, Thos. Jefferson, Jas. Monroe, Henry Clay, J. Q. Adams, Andrew Jackson, Zach’ry Taylor, and A’bram Lincoln. Writes the attorney for Master Zivitofsky:
-
“From the founding of the Republic through the Lincoln Administration there clearly was no consensus that the Constitution assigned recognition of foreign governments exclusively to the discretion of the Executive. President Monroe requested joint action from the Congress to accord recognition to new Latin American republics. President Jackson analogized the recognition power to the power to declare war, and he left to Congress the recognition of the independent Republic of Texas. President Taylor believed that he could only ‘recommend to Congress . . . the recognition of Hungary.’ And President Lincoln withheld dispatch of ministers to Haiti and Liberia until Congress authorized recognition of those countries — even though he could discern no reason why nations with black populations should not be recognized.”
Master Zivitofsky, therefore, asserts that it is, in his attorney’s words, “inaccurate to say” — as the government has suggested — “that ‘it has been commonly understood since the Washington Administration’ that the President has exclusive discretionary power to recognize foreign governments. At least through the administration of President Lincoln, Presidents who were confronted with controversial recognition issues acknowledged that action or approval by the Congress was necessary before a foreign government would be formally recognized. More recent assertions of exclusive Executive authority have been challenged by Congress, and no decision of this Court or any lower federal tribunal has, until now, determined whether the President has the totally plenary discretionary recognition power that is being asserted by the Solicitor General in this case.”
* * *
It’s not every day one gets a case that opens up these vistas into our constitutional and historical substructure. So one can expect an exciting day before the high bench — particularly, but not only, for those of us who have lived through the days of the War Powers Act, when a Congress of Lilliputians was challenging the authority of the president to maneuver against the Soviet in the post-Vietnam era. Back then it was the liberals who were worried about a strong president. Now it is conservatives who are worried about a weak president determined, in respect of Jerusalem, to bow to a long-expired resolution by a United Nations that has long since abandoned the ideals on which it founded. It’s just the sort of situation in which it makes sense to seek one’s wisdom in history that the Founders gave us.
Power trumps ethics.
Davidka (above) is right, and by the San Remo Resolution, there is no such thing as an Israeli occupation. How can there be an “occupation” when the land was legally denoted back to the Jews, as the ancient homeland? Who can point out the ’67 cease fire line in the San Remo Resolution of 1920? So, aren’t the Palestinians essentially trespassers on Jewish land?
I have not read the briefs, but there are other interesting arguments to be made. For example, the San Remo Declaration of 1921, unanimously ratified by the Senate, transferred title of the area that is now Israel to the Jewish people (with a British administration that was required to help bring the Jewish state into being.) The San Remo Treaty was incorporated in the League of Nations Mandate, and the same rights of the Jewish people became part of the founding “DNA” of the U.N. which superseded the League of Nations and assumed its obligations. The founding of Israel was based on legal bedrock. No other entity or group has any claim to the Land of Israel, including Jerusalem.
The present administration’s dishonorable position flatly violates solemn U.S. treaty obligations of almost one hundred years’ standing.
fool jews will still vote for Hillary Clinton who demonstrates her amoral opportunism at every step
That’s getting to the heart of the matter: people in power cease to be Democrats and Republicans, or Christians and Jews — They become “Ins” and “Outs”.