Tomorrow, Monday November 7, 2011 is the day those of us who follow the signing statement have been waiting for, because this is the day the Supreme Court will hear oral arguments in the decision M.B.Z. v Clinton (Docket No. 10-699).
This case involves the American parents of a child born in Jerusalem who wanted their child's birth certificate to declare the place of birth "Jerusalem, Israel." When Congress passed the Foreign Relations Authorization Act for FY 2003, the directed the Secretary of State to add "Israel" to the birth certificates of American citizens born in the Holy City. Up to this time, it was the policy position of the U.S. to stay neutral as to the ownership of the City--Congress decided to change that policy in a law signed by President George W. Bush.
When President George W. Bush signed the law, he issued 21 separate and distinct challenges to numerous provisions, including two challenges (Sections 325 & 687) that grounded in the Due Process Clause of the 5th Amendment!
In this particular case, Bush objected to Section 214 of the Law, which is Congress ordering the Secretary of State to add "Israel" to the birth certificate and passports of children born in Jerusalem. Bush wrote:
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.
M.B.Z. was born in 2002 in Jerusalem to American parents, and his parents requested that the Israel designation be added to his passport, which the Secretary of State refused to do. The lower courts rejected their claim under the "Political Questions" Doctrine--that is the question at hand was better suited for the President and the Congress, not the courts. In a surprising reversal, the Supreme Cour agreed to hear the case tomorrow.
The two questions at issue: First, the Political Questions issue of whether the Courts are competent to hear this claim and Second, whether the President's foreign policy prerogatives prevent Congress from legislating U.S. Foreign Policy.
Given how settled the Political Questions Doctrine seems to be, it seems to me that Congress will direct its attention toward the struggle over foreign policy prerogatives, as well as take the opportunity to address the constitutionality of a presidential signing statement. If the Supreme Court decides to address the signing statement, it will be the first time the Supreme Court has take on the issue head on. Also interesting is that this Supreme Court is made up of a number of justices who themselves worked in the Justice Department, and some who were instrumental in developing the signing statement into a potent presidential weapon.
Either way, this is a sleeper decision which means it has not gotten much media attention, but it clearly should. For a lucid overview of the case, check out Neil Kinkopf's panel discussion to the American Constitution Society.
