(Published in The Wall Street Journal, September 12, 2011)

The Supreme Court will soon decide if the U.S. must recognize the city as Israel’s capital.

By DAVID B. RIVKIN JR. AND LEE A. CASEY

The city of Jerusalem has been fought over for nearly 3,000 years and remains one of the most contentious places on Earth. This fall, the battle will reach the U.S. Supreme Court.

The case—Zivotofsky v. Clinton, brought by the parents of Menachem Binyamin Zivotofsky, a U.S. citizen born in Jerusalem on October 17, 2002—involves a 2002 effort by Congress to force U.S. recognition of Jerusalem as Israel’s capital. It sought to do so by, among other things, requiring the State Department to identify Israel as the place of birth on passports issued to U.S. citizens born in Jerusalem.

The high court must decide two things: whether the case presents a “political question,” which would prevent the court from ruling on it; and, if the court can rule, whether the Constitution allows Congress to require the State Department to identify Jerusalem as part of Israel.

The answer to the second question is clearly no. The president is the nation’s “sole organ” (Chief Justice John Marshall’s phrase) in foreign affairs. The Constitution gives him sole authority to “receive Ambassadors and other public ministers” and since George Washington’s presidency this authority has been understood to include the right to grant or withhold U.S. recognition of a foreign state’s existence, government and territorial extent. Neither Congress nor the courts can direct the president to exercise this authority in any particular manner.

The U.S. first recognized Israel on May 14, 1948, and American policy since has been that the status of Jerusalem can be determined only as part of a broader Middle East peace agreement. Congress directly challenged this policy with the United States Policy with Respect to Jerusalem as the Capital of Israel Act of 2002.

This law, enacted as part of a State Department appropriations bill, forbids the president to use federal funds to publish any listing of international capitals that doesn’t identify Jerusalem as part of Israel, and it also requires that, upon request of the citizen’s legal guardian, the place of birth of U.S. citizens born in Jerusalem be recorded as Israel.

Presidents George W. Bush and Barack Obama have both ignored this requirement because, as all judges who have so far considered this case agree, it exceeds Congress’s constitutional authority. The critical question now before the Supreme Court, though, is whether judges can even decide the dispute.

Both the trial and appellate courts refused to rule on the law’s constitutionality because they concluded that it presented a political question not appropriate for judicial resolution. However, one appellate judge, Senior Judge Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit, disagreed. He argued forcefully that the courts were perfectly capable of resolving this issue (he too would invalidate the law), just like any other challenge to a statute’s constitutionality.

It is, in fact, a close call. The “political question doctrine,” which has long been recognized by the Supreme Court, generally provides that federal courts cannot entertain certain questions involving matters that the Constitution commits to the president or Congress or both (the “political” branches). It is a critical check on judicial authority and, as such, an important aspect of our separation of powers as a whole. From that perspective, its reaffirmation in this case would be a positive development, making clear that there are limits to judicial authority that the Supreme Court is ready, willing and able to respect.

However, as Judge Edwards argues—and as Chief Justice Marshall also wrote in our republic’s infancy—it is “emphatically the province and duty of the judicial department to say what the law is.” For Judge Edwards, the courts would be doing their duty by striking down the Jerusalem as the Capital of Israel Act.

On balance, the Supreme Court should probably treat this case as a political question. The law at issue here differs in one important respect from the many federal statutes that courts consider and interpret on a daily basis: Here Congress has issued a direct command to the secretary of state, and in turn to the president, requiring action that would fundamentally change U.S. policy on Jerusalem. This is a direct congressional challenge to the president’s authority, and it presents a clear and open clash between the political branches on a subject (U.S. foreign policy) constitutionally committed to the executive. That is no place for the courts.

Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations.

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Source: http://online.wsj.com/article/SB10001424053111904583204576546430580642482.html