Constitution Check: Did Governor Christie make a constitutional misstep?

Lyle Denniston looks at how a remark about Israel by New Jersey Governor Chris Christie touched a nerve that also touches on a constitutional issue about the recognition of foreign governments.

THE STATEMENT AT ISSU:

“I took a helicopter ride from the occupied territories across and just felt personally how extraordinary that was to understand, the military risk that Israel faces every day.”

 – New Jersey Governor Chris Christie, in a comment he made during a speech on March 29 at the Republican Jewish Coalition meeting in Las Vegas, about his experience on a family trip to Israel two years ago.  Reminded almost immediately that his reference to the “occupied territories” was deeply offensive to Israelis, who do not concede that their presence in the West Bank area is an occupation, the governor promptly apologized.

WE CHECKED THE CONSTITUTION, AND…

For the past 11 years, the Supreme Court and two lower federal courts have been pursuing the answer to a constitutional question that is as old as the Constitution itself: who in the federal government has the power to decide that the United States will recognize the legitimacy of a foreign government?   Does that authority belong to the President, to Congress, or do the two branches share it?

The two political branches have been feuding over this since at least 1817.  The issues apparently were not settled at the Founding, and have not yet been settled.

The fight over the issue is as new as its role in the breakdown last week of Mideast peace talks between Israeli and Palestinian leaders.  And it is as new as the current term of the Supreme Court, which is likely to make up its mind soon whether finally to answer the constitutional question.  The other two branches make their claims to the power but, since this turns on what the Constitution means, it ultimately falls to the Supreme Court to resolve.

It was into this tempestuous controversy that New Jersey Governor Chris Christie found himself thrust recently, probably quite innocently, as he tried in a political gathering to demonstrate his personal sympathy for the threatened plight of Israel today.  His reference to the “occupied territories” could actually be read as settling the diplomatic issue on which the United States government has tried for generations to remain neutral.   And it might even be read as lining up against the President’s constitutional power to decide where the U.S. stands on Israel’s vital national interests.

But aren’t those political questions, or at least diplomatic issues?  How did this seemingly unending controversy wind up now in the Supreme Court’s bailiwick?  It does so through the claim of a boy, Menachem Binyamin Zivotofsky, who will be 12 years old in October.

The lad, the child of U.S. citizen parents, was born in a Jerusalem hospital, and his parents want his birth certificate to say that Israel was his birthplace.  That document now says only “Jerusalem.”  The U.S. State Department has steadfastly refused to change it to read “Jerusalem, Israel.”

The State Department, in Democratic and Republican administrations, has refused to acknowledge that Jerusalem is either the capital of Israel, or is even a formal part of the nation of Israel.  If the United States government were seen even to be leaning one way or another on that, officials have argued repeatedly, that would have a seriously disruptive effect in the region.

For young Zivotofsky, the State Department’s refusal to yield on his birthplace designation brought on a lawsuit.

The boy, joined by his parents, is seeking to take advantage of a law passed by Congress in 2002, as part of a measure attempting to establish that it is U.S. policy to recognize Jerusalem as the capital of Israel.  The law contained an explicit mandate to the State Department to record on the birth certificate of a Jerusalem-born citizen that the birthplace was Israel, if the family requests that.

Such an explicit directive from Congress to an Executive Branch agency produced, inevitably, a constitutional conflict.  When the Zivotofskys sought to take advantage of the 2002 law, through their lawsuit, a federal judge in Washington dismissed the lawsuit, agreeing with the federal government’s argument to cast it aside. The judge ruled that the claim raised “a quintessential political question, which is not justiciable by the courts.”  The U.S. Court of Appeals for the District of Columbia agreed with that outcome, but the Zivotofsky s then persuaded the Supreme Court to step in.

The Supreme Court, in 2012, ruled that the Zivotofsky case could go forward, but that lower courts should be the first to deal with the question of where, in the government, lay the power to recognize a foreign government, or a foreign claim to disputed territory.   Back in the Court of Appeals, the case resulted in a ruling last summer that Congress had acted unconstitutionally in 2002, and that court struck down the mandate to the State Department as an infringement on the powers of the presidency.  The President alone has the “recognition” power, that tribunal found.

Returning to the Supreme Court, the Zivotofsky family’s lawyers have argued that the question is one that the Justices have never directly confronted or definitely answered.  Although the Obama Administration has made an effort to persuade the Supreme Court to remain on the sidelines on the constitutional issue, the Justices have apparently given a preliminary look at the case and have not yet made up their minds.  They are scheduled to examine the case again at their next private gathering, on April 18.  An order might come within a few days after that.

One consideration that may have an impact on the Justices is that virtually anything they do toward answering the question may well have diplomatic effects.  But, up to now, that has not deterred three federal courts from giving the controversy some very serious thought.

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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