After 226 years, a constitutional answer to a controversial question

by: Lyle Denniston 

The Constitution sometimes gathers its meaning slowly, but it is most unusual for a basic issue of government power to be left unsettled in a final way for more than two centuries.  But that is the history surrounding a core question: who in government decides whether the U.S. will recognize the legitimacy of another nation’s government?

Many have long assumed that the answer was: the President.  Even George Washington thought that, and so have his successors.  But that was not the final or definitive answer, until just now: it is the answer given by a federal appeals court in Washington, in a case growing out of the ancient struggle over control of the holy city of Jerusalem.

That controversy has run on for centuries, and the U.S. government has been trying to deal with it – or not deal with it – at least since Israel became an independent nation 65 years ago.
Beginning with the administration of President Harry Truman, the government in Washington has insisted that it will remain neutral on whether Jerusalem is a part of Israel, a part of a Palestinian state, or something else again.  One American government after another has gone to unusual lengths to demonstrate that, until peace finally comes to the Arab-Israeli conflict, Jerusalem’s official status will remain unresolved.
Congress, of course, has spent years trying to influence the government’s position, and the dominant effort since 1995 has been to compel American officials to treat Jerusalem as the capital of Israel.   Believing that all such efforts are bound to stir angry resentment, and even violence, among Arab nations and peoples, presidents have fought for the principle of strict neutrality.

It was ultimately left to the federal courts, as is often the case when such major constitutional confrontations occur between the other two branches of government, to resolve the dispute.  That would not have been necessary, of course, if the political branches had sat down together to work it out, but they have not.
The constitutional issue is ultimately getting settled in a remarkable way: that is, in the case of a boy, now 11 years old, a U.S. citizen who was born in Jerusalem, and who – along with his citizen parents — wants to be able to prove that he was born in Israel.   The way they would like to do that is to have Israel listed on his passport as his birthplace.   Because of the U.S. government’s neutrality policy, the State Department refused to make out his passport that way.  To the State Department, Menachem Zovotofsky was born in Jerusalem, not Israel.
Ten years ago, the boy’s parents began a lawsuit in federal court.  They were relying upon a law newly passed by Congress in 2002, dictating that the State Department should grant the wish of U.S. citizens born in Jerusalem after Israeli independence to list Israel as their birthplace.

As their case moved along, two lower federal courts ruled that the courts should stay out of the controversy, declaring that an inter-branch feud over the recognition, or not, of the status of Jerusalem was a “political question.”   Last year, the Supreme Court said that this was, in reality, a constitutional question, and the courts should answer it.
The answer did not come easily, it turns out.  There is no place in the Constitution that governs who decides on the official acknowledgement of a foreign government’s legitimacy.  Those around at the time the Constitution was first written did not seem to have thought it was worth settling.
The “recognition power” is simply not spelled out, and even scholars with points of view on the subject have not been able to find constitutional language that supports an answer.
The U.S. Circuit Court of Appeals for the District of Columbia, in a comprehensive tour of American constitutional history, found the answer this week.  One of the judges wrote: “We find ourselves in relatively uncharted waters with few fixed stars by which to navigate.”

The navigational guide on which they settled was the practice of the government, over the years since 1793, and not in the wording of the founding document.   If a constitutional way of doing things has been accepted and followed consistently over a long period of time, the appeals court said, that is “evidence of constitutional meaning.”
And the evidence in this situation, it ruled, adds up to one conclusion: the president, alone and exclusively, holds the power to recognize another government.  And that includes whether to recognize which sovereign nation has a valid claim that Jerusalem belongs to that country.  The corollary of the power to recognize, of course, is the power to withhold recognition.
So that court struck down the 2002 law.   While conceding that Congress has some authority to regulate the passport system, the three-judge panel decided that the power cannot be used to intrude upon the President’s sole authority to speak for the nation about the legitimacy of other governments.
Menachem Zivotofsky’s lawyers are already making plans to try to take the issue back to the Supreme Court.  One of those attorneys, Nathan Lewin of Washington, told the press that his client would like to have the issue settled by the time of his bar mitzah, about two years from now.

The chances seem quite good that the Supreme Court will think the issue important enough (and interesting enough) for the Justices to make the final decision.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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