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Blocked Punt
Menachem Binyamin Zivotofsky was born in Jerusalem on Oct. 17, 2002. His parents are American citizens, making Zivotofsky an American citizen as well. His mother requested that Menachem's place of birth be listed as "Jerusalem, Israel" on a consular report of birth abroad and on his passport but U.S. officials refused to do so, citing the State Department’s Foreign Affairs Manual, which states:
Disputed Territory: Where the birthplace of the applicant is located interritory disputed by another country, the city or area of birth may be written in the passport, if shown on the application and if included for use on the birthplace transcription guide ...

Birthplace in Jerusalem: For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem.

But, see, Congress wasn't crazy about this, and in Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, they stated:
For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.
In signing this provision into law, then-President George W. Bush issued a signing statement opposing its enforcement, a position to which the Obama administration has adhered:
Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly 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. U.S. policy regarding Jerusalem has not changed.
So the Zivotofsky family sued, saying that Congress should trump the State Department, and the lower courts punted, maintaining that the "political question" doctrine left this dispute for the president and Congress to settle between themselves, that courts were incompetent to weigh in on this question given the sensitivities.

In an 8-1 decision today, the Supreme Court disagreed, and ordered the lower courts to determine whether Congress' act was within its constitutional powers over foreign policy. Chief Justice Roberts penned the main opinion, for himself and Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan.

(Continue reading below the fold)

The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.”This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under §214(d), to choose to have Israel recorded on his passport as his place of birth....

The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.

Moreover, because the parties do not dispute the interpretation of §214(d), the only real question for the courts is whether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.”

In this case, determining the constitutionality of §214(d) involves deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law must be invalidated and Zivotofsky’s case should be dismissed for failure to state a claim. If, on the other hand, the statute does not trench on the President’s powers, then the Secretary must be ordered to issue Zivotofsky a passport that complies with §214(d). Either way, the political question doctrine is not implicated. “No policy underlying the political question doctrine suggests that Congress or the Executive . . . can decide the constitutionality of a statute; that is a decision for the courts.”

Resolution of Zivotofksy’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.
Justice Alito has a brief concurrence, largely along the majority's lines as far as I can tell.

Justices Sotomayor and Breyer concur (well, and Breyer dissents) because they think it's a closer, tougher question and agree on what test should be applied, with Sotomayor aligning with the majority and Breyer believing that application of the test should keep courts out of this dispute:

The Constitution primarily delegates the foreign affairs powers “to the political departments of the government, Executive and Legislative,” not to the Judiciary. ...And that fact is not surprising. Decisionmaking in this area typically is highly political. It is “delicate” and “complex.” It often rests upon information readily available to the Executive Branch and to the intelligence committees of Congress, but not readily available to the courts. It frequently is highly dependent upon what Justice Jackson called “prophecy.” And the creation of wise foreign policy typically lies well beyond the experience or professional capacity of a judge. At the same time, where foreign affairs is at issue, the practical need for the United States to speak “with one voice and ac[t] as one,” is particularly important.... if the courts must answer the constitutional question before us, they may well have to evaluate the foreign policy implications of foreign policy decisions.

... Were the statutory provision undisputedly concerned only with purely administrative matters (or were its enforcement undisputedly to involve only major foreign policy matters), judicial efforts to answer the constitutional question might not involve judges in trying to answer questions of foreign policy. But in the Middle East, administrative matters can have implications that extend far beyond the purely administrative. Political reactions in that region can prove uncertain. And in that context it may well turn out that resolution of the constitutional argument will require a court to decide how far the statute, in practice, reaches beyond the purely administrative, determining not only whether but also the extent to which enforcement will interfere with the President’s ability to make significant recognition-related foreign policy decisions.

...[T]he Secretary argues that listing Israel on the passports (and consular birth reports) of Americans born in Jerusalem will have significantly adverse foreign policy effects. She says that doing so would represent “ ‘an official decision by the United States to begin to treat Jerusalem as a city located within Israel,’ ”that it “would be interpreted as an official act of recognizing Jerusalem as being under Israeli sovereignty,” and that our “national security interests” consequently “would be significantly harmed.”

...A judge’s ability to evaluate opposing claims of this kind is minimal. At the same time, a judicial effort to do so risks inadvertently jeopardizing sound foreign policy decisionmaking by the other branches of Government. How, for example, is this Court to determine whether, or the extent to which, the continuation of the adjudication that it now orders will itself have a foreign policy effect?

To be clear: the Zivotofskys may still lose. The Courts may decide that this is an issue for the Executive Branch to decide, not Congress.  But at least they now get their day in court to make their case.

Originally posted to Adam B on Mon Mar 26, 2012 at 09:09 AM PDT.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics and Daily Kos.

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Comment Preferences

  •  what tangled webs (12+ / 0-)

    Presidents weave when they sign objectionable laws and then pretend that the law isn't the law.   If you let Congress legislate in areas of executive perogative, and don't confront it directly, maybe you deserve to have it bite you in the ass later on.

    Like having the Supreme Court tell you that Congress can determine what territory is in the State of Israel.  Or how and when to deploy your armies in a war.  Or to issue permits or not to issue permits by the EPA.

  •  This does seem to infringe on the President's (9+ / 0-)

    ability to conduct foreign policy.

    I don't understand why the lower courts saw it as a case where they were charged with deciding whether Jerusalem is the capital of Israel, or even deciding if Jerusalem is disputed.

    That's all it takes, really...pressure and time.

    by Flyswatterbanjo on Mon Mar 26, 2012 at 09:22:28 AM PDT

    •  here's an excerpt from the DC Circuit (12+ / 0-)
      Thus the President has exclusive and unreviewable constitutional power to keep the United States out of the debate over the status of Jerusalem. Nevertheless, Zivotofsky asks us to review a policy of the State Department implementing the President's decision. But as the Supreme Court has explained, policy decisions made pursuant to the President's recognition power are nonjusticiable political questions. See Pink, 315 U.S. at 229, 62 S.Ct. 552 ("Objections to the underlying policy as well as objections to recognition are to be addressed to the political department and not to the courts."). And every president 1232*1232 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. See Br. for Appellee at 6; J.A. at 57 (Defendant's Responses to Plaintiff's Interrogatories). 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. See Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (recognizing that a U.S. passport is an official government document used to communicate with foreign governments). By asking the judiciary to order the State Department to mark official government documents in a manner that would directly contravene the President's policy, Zivotofsky invites the courts to call into question the President's exercise of the recognition power. This we cannot do. We therefore hold that Zivotofsky's claim presents a nonjusticiable political question because it trenches upon the President's constitutionally committed recognition power.
      In a case such as this, to borrow the words of Professor Wechsler, "abstention of decision" is required because deciding whether the Secretary of 1233*1233 State must mark a passport and Consular Report of Birth as Zivotofsky requests would necessarily draw us into an area of decisionmaking the Constitution leaves to the Executive alone. See HERBERT WECHSLER, PRINCIPLES, POLITICS AND FUNDAMENTAL LAW 11-14 (1961). That Congress took a position on the status of Jerusalem and gave Zivotofsky a statutory cause of action in an effort to make good on its pronouncement is of no moment to whether the judiciary has authority to resolve this dispute between the political branches.
      •  So how do you think the lower courts will find? (1+ / 0-)
        Recommended by:
        Terra Mystica

        That's all it takes, really...pressure and time.

        by Flyswatterbanjo on Mon Mar 26, 2012 at 09:39:43 AM PDT

        [ Parent ]

          •  Even if they don't, there may be an easy fix: (1+ / 0-)
            Recommended by:
            Tobimaro

            The law appears to require appending "Israel" to "Jerusalem" at the request of the parents.  I can't see why a strict reading of the law wouldn't allow the SoS to direct that the FULL text of what is appended should be "Israel/Palestine - Disputed Territory".

            :)

            This would fulfill the requirements of the law, and avoid the diplomatic consequences, although only it is true that there would have been a significant erosion of the Executive Branch's ability to conduct foreign policy in that case.

            I think that no matter what the court now decides, it will end up back in the Supreme Court before it's done...

            •  It wouldn't, actually (6+ / 0-)
              I can't see why a strict reading of the law wouldn't allow the SoS to direct that the FULL text of what is appended should be "Israel/Palestine - Disputed Territory".

              :)

              This would fulfill the requirements of the law, and avoid the diplomatic consequences, although only it is true that there would have been a significant erosion of the Executive Branch's ability to conduct foreign policy in that case.

              This would actually make things worse.  Zivotofsky wasn't born in the part of Jerusalem that was in Jordanian hands pre-1967; he was born in the part of Jerusalem that was in Israeli hands pre-1967.  Writing it as "Disputed Territory" would cause massive diplomatic consequences, for that reason.  I won't get into the issue of creative wording, but I suspect that wouldn't quite work.
              •  Just because the particular house he was born in (5+ / 0-)

                (or hospital) was under Israeli control before 1967 does not in any way mean that it isn't potentially part of a land-swap to arrive at an I/P peace deal.  It certainly would be within the prerogative of the Secretary of State to direct this to be written on his passport.

                To be clear, I think that the proper resolution of this is to reaffirm that the Executive Brranch - and particularly the SoS - is acting well within the bounds of their authority by finding this requirement from Congress to be unconstitutional.  I don't agree with George W Bush on much, but I think he was right about this.

                •  I think your suggestion was meant as a joke... (0+ / 0-)

                  ...hence the ':)'. I know it made me laugh!

                  On the off chance you're serious, or anyone takes it seriously, I just want to agree with JLan that if the SoS really did this, it would come across in the region as if the POTUS was making unilateral presumptions about the final status of Jerusalem. It'd be a big headache.

                  "Any plan I sign must include an insurance exchange ... including a public option" President Obama, 7.18.09

                  by efraker on Mon Mar 26, 2012 at 06:28:02 PM PDT

                  [ Parent ]

              •  The US policy with respect to the status (11+ / 0-)

                of Jerusalem is generally unchanged since 1948:  that Jerusalem is an undivided city (despite the ebbs and flows of military control) whose final status can only legitimately be determined by a negotiated agreement between the parties.  The legitimacy of any division should only be one agreed to by those parties.  

                This is why the US Embassy to Israel is in Tel Aviv, and why the Consulate General in Jerusalem (which is not under the authority of the Embassy in TA) includes all of Jerusalem as its Consular area.

                Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

                by Its the Supreme Court Stupid on Mon Mar 26, 2012 at 11:52:15 AM PDT

                [ Parent ]

              •  More descriptively, (1+ / 0-)
                Recommended by:
                Terra Mystica

                "Jerusalem, under control of Israel."

                No statement of acceptance, just of de facto control, which would help in locating vital records.

            •  At best, that's an argument that the text (0+ / 0-)

              is ambiguous, in which case Congressional intent controls insofar as the courts can ascertain it. It's obvious what Congress is trying to do here; the only question is whether it is constitutional.  

  •  If the passport office rules say "don't do it" (3+ / 0-)
    Recommended by:
    SCFrog, sagesource, charliehall2

    then don't do it on your passport.  Debates about  Executive versus Legislative prerogatives notwithstanding, I don't think passport holders get to make passport rules.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Mon Mar 26, 2012 at 09:23:27 AM PDT

  •  wow (1+ / 0-)
    Recommended by:
    Deep Texan

    this is even more nitty-gritty than the story about the mother who conceived clinically.

    and since we're posting music from israel:


    mmmm....israeli psytrance

    Never forget that the Republican War on Women originated with religion; the GOP is but theocracy's handmaiden.

    by Cedwyn on Mon Mar 26, 2012 at 09:24:02 AM PDT

  •  I've always thought that the Constitutional basis (3+ / 0-)
    Recommended by:
    Odysseus, cryonaut, TimmyB

    for giving the President this kind of power was thin anyway.

    It seems to me that Congress gets to say, by statute, what appears in an official document. A passport is not a statement of policy.

    Ok, so I read the polls.

    by andgarden on Mon Mar 26, 2012 at 09:45:59 AM PDT

    •  Hmmm (17+ / 0-)
      A passport is not a statement of policy.
      In this case, I think it is. If the United States does not recognize Jerusalem as the capital of Israel (it doesn't), and it does see it as disputed territory, then why would we put "Jerusalem, Israel" on a passport?

      The same would go for a Palestinian-American born in East Jerusalem. Would we allow the person to put "Jerusalem, Palestine" on his/her passport?

      Saying "yes" to either one of those is a statement of policy--both of which would be in conflict with the stated policy of the executive branch. It would be incoherent.

      That's all it takes, really...pressure and time.

      by Flyswatterbanjo on Mon Mar 26, 2012 at 10:05:35 AM PDT

      [ Parent ]

      •  Even assuming in this case it is, (1+ / 0-)
        Recommended by:
        TimmyB

        I do not believe that the President should have exclusive authority to create foreign policy. I know that's basically our custom, but it's at odds with, at minimum, the Constitution itself (e.g., Art I, § 8, cl. 3).

        Ok, so I read the polls.

        by andgarden on Mon Mar 26, 2012 at 10:19:15 AM PDT

        [ Parent ]

        •  That's the Commerce clause, isn't it? (0+ / 0-)

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Mon Mar 26, 2012 at 04:14:55 PM PDT

          [ Parent ]

          •  Yup (1+ / 0-)
            Recommended by:
            Clem Yeobright

            "with foreign nations."

            Ok, so I read the polls.

            by andgarden on Mon Mar 26, 2012 at 04:15:59 PM PDT

            [ Parent ]

            •  That gives Congress the power to set tariffs (2+ / 0-)
              Recommended by:
              davidincleveland, Terra Mystica

              It is not a broad grant of authority over foreign policy.

              •  That's one reading , (0+ / 0-)

                but it is not the most obvious. Nor does it remotely support the view that the President has exclusive control over foreign policy--to the exclusion of Congress. To the contrary, in fact.

                Ok, so I read the polls.

                by andgarden on Mon Mar 26, 2012 at 05:19:17 PM PDT

                [ Parent ]

                •  I didn't say it was (1+ / 0-)
                  Recommended by:
                  Terra Mystica

                  In any event, the Enumerated Powers Clause is primarily about the balance of power between the federal government and the states. For the balance of power between the President and Congress, Article II is more insightful.  

                  Moreover, the Supreme Court, has recognized that the President has primary authority over foreign affairs.

                  In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.". . .

                  It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps serious embarrassment -- is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty -- a refusal the wisdom of which was recognized by the House itself, and has never since been doubted.

                  United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936)
      •  I think what you say is eminently fair (3+ / 0-)

        and reasonable.
        Amazing, a somewhat I/P discussion with people being civil (so far).

        We're not perfect, but they're nuts! -- Barney Frank

        by Tamar on Mon Mar 26, 2012 at 04:37:36 PM PDT

        [ Parent ]

      •  I think a Palestinian born in pre-1948 Jerusalem (2+ / 0-)
        Recommended by:
        charliehall2, davidincleveland

        is allowed to have Palestine as his or her place of birth on the passport because Palestine was recognized as a country before the 1948 U.N. partition vote.

    •  Not sure about that - (5+ / 0-)

      First, a passport is and always has been (I believe) a document created by the State Department and therefore is an instrument of the Executive Branch.

      Second, a passport and what is said on it, ARE statements of policy at some level, anyway.

    •  If a passport contains political proclamations (3+ / 0-)

      contrary to international law, countries which uphold international law might well consider that this passport is of no value.

      If my passport stated that I was born in Paris, Venezuela,  I doubt I could pass many frontiers with it.

      Quisquis sollers subtilisque sententia a praeclaro antiquo Sapiente latine scripta, sicut consuetudo est apud Kossackos.

      by French Imp on Mon Mar 26, 2012 at 04:29:04 PM PDT

      [ Parent ]

  •  The question for the lower (6+ / 0-)

    courts to determine will come down to this: is Congress acting within its Constitutional authority regarding what goes into passports in making this determination, when making that determination flies in the face of long-standing Executive determinations regard foreign policy.  This would appear to fall into the third category of foreign policy issues outlined by Justice Jackson in Youngstown Sheet & Tube v. Sawyer:  where the Executive has taken action at odds with the express will of Congress and, therefore, his power is at the lowest.  However, unlike the situation in Sawyer, here we have Congress acting on an area against the long-standing will of the Executive (the policy on which this is based goes back until 1948).  So, I would contend that, perhaps, it should viewed as Congress's action coming at the ebb of its authority.  After all, which power is more closely associated with the core functions of the branch:  Congress's authority to legislate regarding passports, or the President's authority to determine our foreign policy?  

    In any case, the USG will have to come up with some novel arguments to bring before the District Court.  Eventually, I think that this will make its way back before the Supremes.  For now, however, I think that they got THIS decision right.  Courts HAVE to make these determinations.  They are the final arbiter regarding disputes between the political branches.  Punting due to the "political questions" doctrine does not resolve the issue, and leaves a Constitutional void which begs to be filled by one or the other branch making false assertions of authority.

    Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

    by Its the Supreme Court Stupid on Mon Mar 26, 2012 at 10:34:01 AM PDT

    •  The "long standing will of the Executive" isn't (0+ / 0-)

      the law.  Nor does the President have exclusive authority to determine foreign policy.

      Sorry, but the President isn't a king we elect every four years.  The Constitution gives Congress a huge say in foreign policy.  For example, Congress declares war.  Treaties must be passed by the Senate.  

      Congress has every right to say what can be put into passports.  In fact, Congress can pass a law banning passports.  It can pass a law saying passports are to be printed on pink polka dot paper.  

      The president does not get to determine what laws he or she will follow.  The president, not even Democratic ones, are above the law.    
                     

      •  It is nowhere near as simplistic as your (1+ / 0-)
        Recommended by:
        Adam B

        comment implies.  I refer you to the opinion (PDF) in which Roberts writes:

        In this case, determining the constitutionality of §214(d)involves deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law must be invalidated and Zivotofsky’s case should be dismissed for failure to state a claim. If, on the other hand, the statute does not trench on the President’s powers, then the Secretary must be ordered to issue Zivotofsky a passport that complies with §214(d).
        emphasis mine

        The implication is that there is strong Presidential authority in the area of foreign affairs which MAY be implicated by Congressional overreach in passing this law.  The final determination on that will be reached by the courts in determining the case.

        Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

        by Its the Supreme Court Stupid on Tue Mar 27, 2012 at 03:54:59 AM PDT

        [ Parent ]

  •  The statute does not say (2+ / 0-)
    Recommended by:
    socalmonk, Terra Mystica

    that a passport applicant can request that "Jerusalem, Israel" be listed as the place of birth.  It only says that "Israel" can be used.

    As I read it, the passport applicant gets "Jerusalem" if he or she does not make a contrary request, and "Israel" if they do.

    "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

    by Old Left Good Left on Mon Mar 26, 2012 at 10:39:16 AM PDT

  •  the manual's pretty damn fascinating (17+ / 0-)
    (6) Taiwan:

    (a) Public Law 103-415 (1994) provided that the Secretary of State may write “Taiwan” as place of birth in a passport whenrequested to do so by applicants born there.

    NOTE:
    The United States does not officially recognize Taiwan as a “state” or “country,” although passport issuing officers may enter “Taiwan” as a place of birth. (See also 7 FAM
    1340 Appendix D d(6)(f).)
    (b) An applicant who writes “China” as his/her place of birth on apassport application will continue to have “China” printed in his/her passport. If the person is a first time passport applicant, the applicant’s proof of birth documentation should reflect birth in Taiwan in accordance with paragraph (d) below.

    (c) An applicant who writes “Taiwan, China” as a place of birth on a passport application should be contacted to ascertain whether he/she prefers either “Taiwan” or “China” as his/her place of birth.

    (d) When an applicant writes “Taiwan” on a passport application as place of birth, print Taiwan as the place of birth on the passport after confirming, by examining the citizenship evidence and other documentation, that the applicant’s city of  birth is on one of the following islands: the island of Taiwan (formerly called Formosa), Penghu (formerly called Pescadores), Quemoy, or Matsu.

    (e) The city of birth only option (7 FAM 1380 Appendix D) is an available alternative.

    (f) One China Policy: Passports may not be issued showing place of birth as “Taiwan, China”, “Taiwan, Republic of China”  or “Taiwan ROC”. The United States recognizes the government of the People’s Republic of China as the sole legal government of China and acknowledges the Chinese position that there is but one China and that Taiwan is a part of China.

    (g) A passport applicant whose previous U.S. passports listed “Taiwan” as place of birth may request that his/her new passport be issued listing “China” as place of birth.

  •  Good gawd (5+ / 0-)

    How many of my immediate relatives and ancestors could claim the same goddammed issue--and the place of birth would be someplace in Ireland, circa --oh, I don't know, now for Northern Ireland -- elsewhere -pre-1922.

    Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Mon Mar 26, 2012 at 04:14:56 PM PDT

    •  my father was born in a town that has been in (3+ / 0-)
      Recommended by:
      gchaucer2, Adam B, Terra Mystica

      the Austro-Hungarian empire, Poland, Russia, and now the Ukraine. And since WWII, it's had an entirely different name.
      I have no idea what was on his passport. I'm going to call my brother (who's the one who kept various mementos) and ask him if he knows.

      We're not perfect, but they're nuts! -- Barney Frank

      by Tamar on Mon Mar 26, 2012 at 04:41:00 PM PDT

      [ Parent ]

    •  But there is no dispute on West Jerusalem! (0+ / 0-)

      The kid was born in West Jerusalem, inside the green line, a place where there is no dispute, a place that was, in 1948, declared as much as part of Israel as Tel Aviv.

  •  Foreign policy is pretty much an (0+ / 0-)

    Executive Branch area of government. Congress has some say of course but, without reading into the details, I don't see how this gets decided any other way.

    Nor do I see why the Supreme Court of the United States is wasting its time with such nonsense.

    "Do what you can with what you have where you are." - Teddy Roosevelt

    by Andrew C White on Mon Mar 26, 2012 at 04:21:15 PM PDT

  •  So Congress has mandated one may (1+ / 0-)
    Recommended by:
    Terra Mystica

    set one's own policy for defining the sovereignty of disputed regions. Fun if you were born in Chechnya, Kasmir, the Sakhalin Islands, etc. Somehow I doubt Congress intended this; rather, perhaps this was  to placate a certain Middle Eastern ally. Hopefully the lower courts will invalidate this silly law.

  •  Just a question (0+ / 0-)

    So at the heart of this is whether signing statements are worth the paper they are written on?

    Is that a fair over-simplification?

    "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

    by Empty Vessel on Mon Mar 26, 2012 at 04:56:48 PM PDT

  •  It seems simple to me (1+ / 0-)
    Recommended by:
    Adam B

    Legislature passes laws, executive carries them out. The executive can choose to ignore the law, but if sued the court should force the executive to follow the law, unless said law is unconstitutional. I thought that's why we have courts. Am I missing something here?

    There is truth on all sides. The question is how much.

    by slothlax on Mon Mar 26, 2012 at 05:02:37 PM PDT

  •  Wouldn't it make the most sense to determine (0+ / 0-)

    where and under what authority a birth certificate was issued and where the birth record resides? Even assuming the status of Jerusalem were to change in the future, as it has many times in the past, it would seem fair to assume that, regardless of the disputed status of the area, the nation of birth would be whichever nation's administrative apparatus issued a  birth certificate and currently holds the records.

    •  depends on what the goal of a passport is (1+ / 0-)
      Recommended by:
      Terra Mystica

      That makes the most sense in the context of passport-as-descriptor-of-an-individual.

      This law, and this case, is really more about foreign policy - wherein the passport is a means of describing the relationship between two countries. To what degree can a nation be said to exist... that sort of weird philosophical issue.

      "Any plan I sign must include an insurance exchange ... including a public option" President Obama, 7.18.09

      by efraker on Mon Mar 26, 2012 at 06:33:18 PM PDT

      [ Parent ]

  •  Soooo, these people spend $ thousands (1+ / 0-)
    Recommended by:
    Terra Mystica

    in court costs to get one additional word in their kid's passport?

    I assume they are rich (or have their costs paid by someone else). Or maybe they prefere to tell their kid that they can't pay for his college education, but hey, he's got that extra word in his passport.

    Boehner (n) North German: variant of Böhnhaas - someone who does a job they don't have the qualifications for and who typically delivers shoddy work

    by Calouste on Mon Mar 26, 2012 at 05:56:30 PM PDT

  •  What a headache of a case. (1+ / 0-)
    Recommended by:
    phillies

    I suspect the Justices were tempted to get extremely drunk afterwards.

    The thing about quotes on the internet is you cannot confirm their validity. ~Abraham Lincoln

    by raboof on Mon Mar 26, 2012 at 06:05:46 PM PDT

  •  And at some point, (0+ / 0-)

    someone will ask that the child's birthplace be recorded as Jerusalem, Palestine or as Jerusalem, Jordan.  Fortunately, the current generation of Christian faithful are unlikely to insist on Jerusalem, Christian Kingdom of Jerusalem (momentarily under foreign occupation).

    We can have change for the better.

    by phillies on Mon Mar 26, 2012 at 06:23:16 PM PDT

  •  Case is actually very important (2+ / 0-)

    Reading about this case at SCOTUSblog, they argue (and I agree) that this is a very important case, because whether or not the Supreme Court decides that 214 is constitutional will redefine the degree to which Congress can legislate in the area of foreign policy. Leaving aside all the potential foreign policy consequences, it's potentially an epic separation of powers case - or it will be if/when it comes before the Supreme Court again.

    Actually I understate when I say 'very important', they actually toss around words like 'historic'!

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