But what if the Zivotofsky case is not decided on the basis of whether the Executive branch has the exclusive right to exercise the “recognition” power, that is, the power to officially recognize its relationship with another sovereign state, versus the right of the legislative branch to do so, in certain circumstances?
Yes, for pro-Israel advocates it is hard to see the case through any lens other than the one that validates what they know to be true: that Jerusalem is the one, undivided and eternal capital of the Jewish people, and therefore of course any child born in Jerusalem is born in the country now known as Israel.
But this isn’t a debate setting, nor is it the place to decide the legal borders of the Jewish State, for purposes of the official position of the U.S. government. For if it is, there may well be a deeply depressing ending to this story.
Instead, creativity is required to come to a result that neither does violence to the 200 year-plus and – at least with respect to this particular issue – nearly ironclad traditional separation of powers framework or to the ability of children born in Jerusalem to have Jerusalem, Israel stamped on their passport.
Eugene Kontorovich and Alan Gura, writing for the legal academic scholars at the Louis D. Brandeis Center for Human Rights Under Law and professors of foreign relations and constitutional law, have crafted an elegant argument in an amicus brief that meets all four corners of the issue, and does harm to none of the important frameworks and relations in play.
Their simple but elegant argument is that of course Congress has the ability to pass legislation which designates what city is in which country for passport purposes. And they enumerate the many ways and times Congress has made determinations regarding Jerusalem as a “place” in Israel, which have never been questioned, as well as other places which Congress, through treaties or other legislative constructs, recognizes where a particular place is located for certain purposes, as distinct from the U.S. government officially recognizing the sovereignty of a particular place. The first Congress can do, the latter falls under the executive’s sphere of power.
As the Brandeis Center brief puts it: “Allowing for the fact that Jerusalem is a “place” in Israel is not only a necessary and proper exercise of Congress’s enumerated powers. It is a routine act.”
This is how the Brandeis Center amicus recognizes the different spheres of power:
Recognition of the existence of a sovereign state and recognition of a particular regime exhaust the meanings of recognition in foreign relations and international law. There is no such thing as “geographic” recognition. Recognition of both nations and governments does not entail a delineation of their borders; nor does it presume an acceptance of their maximum claimed borders.
The first sentence delineates power vested in the Executive branch, the second is permissible for the legislative branch to determine.
This way of framing the argument respects another important rule of the framework of the U.S. government. This one, set forth in a Supreme Court decision from the 1930’s, requires that the Supreme Court avoid wading into constitutional waters when there is a simpler, narrower construction upon which a case can be decided.
It may be tempting to rail against the United States government for daring to deny the historical nexus between Jerusalem and the Jewish State, but doing so does not accomplish anything constructive in the arena of the U.S. Supreme Court in the context of this particular case.
One aspect of the government’s brief demands note.