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Public Statements

Authorizing Senate Legal Counsel

Floor Speech

Location: Washington, DC

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 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.

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