Born in Jerusalem Means Born in Israel?

There is a case on the Supreme Court’s docket this session (which began Monday) that can be summarized thusly:

Born in Jerusalem: The case of an American born in Jerusalem who wants his passport to list his birthplace as Israel underlies a major dispute between Congress and the president, with Middle Eastern politics as the backdrop. The United States has never recognized any nation’s sovereignty over Jerusalem, believing the city’s status should be resolved in peace negotiations. The administration says a 2002 law passed by Congress allowing Israel to be listed as the birthplace of Jerusalem-born Americans would in essence be seen as a US endorsement of Israeli control of the city.

This should be a no-brainer, and it never should have reached this point.

“The Administration” signed the bill into law; it wasn’t merely “passed by Congress.” If the President didn’t like the way it would be perceived by foreign nations, he should have vetoed it, instead.

The courts cannot rule on American domestic law on the basis of how foreign nations might perceive the thing. The courts can only rule on what the law says, in its context—which is domestic. Even at that, what the law says must be primary.

Perceptions of the law by foreign nations are matters of politics not of law, as the separate existences of Articles I and III in our Constitution make clear. The courts have nothing to say on matters of politics.

Finally, if the present administration—or the present Congress, come to that—no longer believe this law to be appropriate in any way, including because of foreign nations’ perceptions, those two should work together on this purely political matter to alter or rescind it. Resorting to the courts is inappropriate and a waste of judicial (and Congressional and administration) resources.

(Aside: that neither Congress nor the President should worry overmuch about foreign opinion when considering American laws is a separate matter.)

Another summary of the case, which gives an outline of its legal history, is here. In my view, the district court, as summarized by this link, erred in both of its rulings. Having held originally, the matter was a non-justiciable political question, the judge should have required State to follow the law. The court was not equipped to rule otherwise, since it had not found the law “illegitimate,” which is to say unconstitutional.

The judge’s second error, when told (correctly) by the Supremes to quit waffling and make a decision, was to rule the relevant section of the law to be an unconstitutional interference with the President’s sole authority to recognize foreign states. Of course, the section does no such thing; it merely accepts that Jerusalem is a part of Israel. The President’s recognition power is unaffected.

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