[Congressional Record (Bound Edition), Volume 160 (2014), Part 9]
[Senate]
[Pages 12213-12214]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    AUTHORIZING SENATE LEGAL COUNSEL

  Mr. REID. I ask unanimous consent that the Senate proceed to S. Res. 
504.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The assistant legislative clerk read as follows:

       A resolution (S. Res. 504) to direct the Senate Legal 
     Counsel to appear as amicus curiae in the name of the Senate 
     in Menachem Binyamin Zivotofsky, By His Parents and 
     Guardians, Ari Z. and Naomi Siegman Zivotofsky v. John Kerry, 
     Secretary of State.

  The PRESIDING OFFICER. There being no objection, the Senate proceeded 
to consider the resolution.
  Mr. REID. Mr. President, next term the Supreme Court will take up a 
case presenting the question whether a provision of the Foreign 
Relations Authorization Act for Fiscal Year 2003, which affects the 
official identification documents of some American citizens born 
abroad, is constitutional. In 2002, Congress enacted a law permitting 
U.S. citizens who are born in Jerusalem to have the Secretary of State 
specify ``Israel'' as their birthplace on their passports and other 
consular documents. Under existing State Department policy, passports 
and other documents of U.S. citizens born in Jerusalem may only record 
``Jerusalem'' as their place of birth, not ``Israel,'' regardless of 
the wishes of the child or the parents.
  Although the President signed the Foreign Relations Authorization Act 
for fiscal year 2003 into law, in his signing statement he stated that, 
if the section of the law that included that provision, section 214, 
were interpreted as mandatory, it would ``interfere with the 
President's constitutional authority to formulate the position of the 
United States, speak for the Nation in international affairs, and 
determine the terms on which recognition is given to foreign states.'' 
Emphasizing that ``U.S. policy regarding Jerusalem has not changed,'' 
the Executive has continued to record solely ``Jerusalem'' as the 
birthplace on passports of all U.S. citizens born in Jerusalem, 
regardless of their preference and notwithstanding the statute.
  In accordance with the Executive's policy, the State Department 
declined a request to place ``Israel'' on the official documents of a 
young Jerusalem-born U.S. citizen despite the statutory directive. The 
boy's parents then sued the Secretary of State on his behalf and sought 
an order to have ``Israel'' recorded as their son's place of birth. 
Their suit has been before the D.C. Circuit three times and is now in 
the Supreme Court for the second time.
  Both the district court and the court of appeals initially ordered 
the suit dismissed. The D.C. Circuit held that the parents' claim under 
the statute ``presents a nonjusticiable political question because it 
trenches upon the President's constitutionally committed recognition 
power,'' which the court said, includes ``a decision made by the 
President regarding which government is sovereign over a particular 
place.'' Siding with the Executive, the court explained, ``[E]very 
president since 1948 has, as a matter of official policy, purposefully 
avoided taking a position on the issue whether Israel's sovereignty 
extends to the city of Jerusalem. . . . The State Department's refusal 
to record `Israel' in passports and Consular Reports of Birth of U.S. 
citizens born in Jerusalem implements this longstanding policy of the 
Executive.''
  The parents sought Supreme Court review, and in 2011 the Attorney 
General advised Congress that the Department of Justice would defend 
the court of appeals' judgment that the case was nonjusticiable, but 
that it would also argue that, if the claim was found to be 
justiciable, section 214(d) of the Act unconstitutionally infringes on 
the President's exclusive authority to recognize foreign states. A 
number of Senators and Members of the House appeared as amici curiae, 
or friends of the court, in support of the statute.
  The Supreme Court granted certiorari and vacated the court of 
appeals' holding that the constitutional issue was a political 
question. The Court found that the case called for nothing more than 
performing the ``familiar judicial exercise'' of ``deciding whether the 
statute impermissibly intrudes upon Presidential powers under the 
Constitution.''
  On remand, Members of both Houses again submitted amicus curiae 
briefs in defense of section 214(d). One judge on the appellate panel 
found that the plaintiff's argument was ``powerfully'' buttressed by 
briefs submitted by Members of Congress, among other amici. However, 
the panel majority observed, ``While an amicus brief has been submitted 
on behalf of six senators and fifty-seven representatives, they of 
course do not speak for the Congress qua the Congress.''
  Based on its review of constitutional text and structure, precedent, 
and history, the D.C. Circuit concluded, this time on the merits, that 
the President ``exclusively holds the power to determine whether to 
recognize a foreign sovereign'' and that the statute ``plainly intended 
to force the State Department to deviate from its decades-long position 
of neutrality on what nation or government, if any, is sovereign over 
Jerusalem.'' The court found conclusive the Executive's view that, in 
so doing, ``section 214(d) would cause adverse foreign policy 
consequences.'' Accordingly, the court found that the law 
``impermissibly intrudes on the President's recognition power and is 
therefore unconstitutional.''
  In April of this year, the Supreme Court again granted review in the 
case, this time focused on the single question: ``Whether a federal 
statute that directs the Secretary of State, on request, to record the 
birthplace of an American citizen born in Jerusalem as born in `Israel' 
on a Consular Report of Birth Abroad and on a United States passport is 
unconstitutional on the

[[Page 12214]]

ground that the statute `impermissibly infringes on the President's 
exercise of the recognition power reposing exclusively in him.'''
  This case, accordingly, now presents the Supreme Court with very 
important questions about the constitutional allocation of power 
between the branches over foreign affairs. The issues likely to be 
addressed include the claims of the Executive that the Constitution 
gives the President exclusive authority over recognition of foreign 
governments, that this law implicates such authority, and that the 
statute infringes impermissibly on the President's recognition power.
  Contrary to the Executive's claim and the reasoning of the D.C. 
Circuit, this statutory provision does not usurp any constitutional 
power of the President. In particular, it does not infringe on the 
President's exercise of the power to recognize foreign governments and 
to voice positions on matters of international sovereignty on behalf of 
the United States.
  In legislating the content of identification documents available to 
American citizens born abroad, Congress is exercising its plenary 
powers over immigration and naturalization and its constitutional 
authority to regulate foreign commerce. The law does not alter the 
position of the United States on the status of Jerusalem. Rather, it 
continues Congress's century-and-a-half-old exercise of legislative 
authority over the contents and design of identification documents, 
such as passports, held by U.S. citizens. Congress does so in this case 
to respect the prerogative of American citizens to identify themselves 
as American citizens with a birth connection to the State of Israel, 
should they choose to do so.
  Mr. President, Title VII of the Ethics in Government Act authorizes 
the Senate to appear as an amicus curiae in any legal action in which 
the powers and responsibilities of the Congress under the Constitution 
are placed in issue. Appearance as an amicus curiae in this case would 
enable the Senate to respond to the Executive's contention that this 
law infringes on the President's constitutional power to recognize 
foreign governments and to present to the Court the basis for the 
Senate's conviction that the law is consistent with the Constitution.
  This resolution would authorize the Senate Legal Counsel to appear in 
this case in the Senate's name as amicus curiae to support the 
constitutionality of the statute.
  Mr. REID. I ask unanimous consent that the resolution be agreed to, 
the preamble be agreed to, and the motion to reconsider be considered 
made and laid upon the table, with no intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 504) was agreed to.
  The preamble was agreed to.
  (The resolution, with its preamble, is printed in today's Record 
under ``Submitted Resolutions.'')

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