The case at hand involves an American couple whose child was born in Jerusalem in 2002. American foreign policy has long kept us from taking sides in the dispute between Israel and Arab claims for Jerusalem, which has meant that an American born in the city has a birth certificate that simply records "Jerusalem" as the place of birth. This particular American couple, however, wanted the birth certificate to read "Jerusalem, Israel." When they went to the State Department to ask that the birth certificate reflect both the city and country of origin, the State Department balked. So the couple took their case to the Congress, which added a provision to the "Foreign Relations Authorization Act, FY 2003."
Specifically, Section 214--"United States Policy with Respect to Jerusalem as the Capital of Israel" subsection (d) reads: "Record of Place of Birth as Israel for Passport Purposes: 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 Jersalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."
But not so fast. The President has long asserted sole prerogative over foreign policy matters, with some blessing by the Supreme Court. Furthermore, there is a long lineage of challenges in presidential signing statements to attempts by the Congress to interfere with the president's power over foreign policy and national security. Furthermore, attempts by the Congress to recognize Jerusalem as part of Israel have consistently been challenged by presidents dating to President Clinton.
In this particular case, President Bush issued 21 separate challenges to the bill. And just to give you a sense of the difference between Bush and Obama with respect to the signing statement, here is a small taste:
The executive branch shall also construe provisions in the Act that mandate submission of information to the Congress or the public, such as sections 204, 215, 603, 613(b), 615 and 1602, in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair the foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. The Secretary of State will, of course, continue as a matter of comity to keep the Congress appropriately informed of the Nation's foreign affairs activities.
So there you have challenges both implicit and explicit, which as you can see makes it difficult to figure out all the things that are actually being challenged.
With respect to this issue, President Bush challenged Section 214 this way:
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, impermissibliy 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.
It will be interesting how the Supreme Court rules on this decision--the intent of Congress and the letter of the law or, like they did in the legislative veto case, a long history of presidential objection to congressional action that violated separation of powers.
