Jerusalem and the separation of powers

I miss seeing the New York Sun on stands when I get off at Penn Station.

In its brief print presence, it was a signal of that city’s essential tension, its war with itself, and its comity too.

It scrapped with the New York Times, conservative v. liberal, to be sure; Yet it also held the Times and its readers in a tight embrace, adopting the more ancient paper’s staid look, its measured upper middle class 4/4 beat, a sweet little contrary Gray Miss skipping alongside the Gray Lady.

Anyhow, it persists online, like the ghostly girl in the upper brownstone window in an early 20th century urban legend.

Today, its editorial page writer — Seth Lipsky, I believe — considers the Supreme Court’s decision to take up the case of Menachem Binyamin Zivotofsky, the nine year old who wants his birthplace to read "Jerusalem, Israel" on his passport. (Alyza Lewin, whose firm is representing Zivotofsky, wrote in to correct that the law requires only that the country — "Israel" — should be listed.)

The writer appears to favor Zivotofsky and, by extension, Congress, which passed the law mandating such a designation should the holder wish it. 

He tries mightily — and honorably — to reconcile his distaste with the signing statement overriding the 2002 law, as signed by George W. Bush and evidently upheld by Barack Obama, with his support for strong presidential foreign policy prerogatives during the Reagan administration.

His argument appears to be that this law is small potatoes, and so its okay to defer to Congress, whereas on the big stuff, the president should decide:

On its face his petition for a hearing doesn’t ask the Supreme Court to sort out who owns Jerusalem or who gets to decide the question or who runs foreign policy of the United States. Congress, after all, passes laws in respect of all kinds of things that affect foreign policy. What he does suggest is that the Congress has enough power to write the rules for issuing certificates of birth abroad and to require the government to accede to parents’ wishes on the matter.

(snip)

The notion that the president is supreme in foreign affairs had a particular allure during the years when the Soviet Union was on the march, President Reagan was in the White House, and Congress was trying to limit the president’s war powers. We’ve been prepared to support a strong president, even when he’s a Democrat. But the clause about faithfully executing the law is no small matter either. And when Congress has acted as unambiguously as it has in respect of the rights of an American born at Jerusalem, it strikes us that the Supreme Court has the opportunity here use the plea of a child to remind us that we are a nation of laws not of men.

Like I said, I think the writer’s effort to reconcile his conflicting, even partisan impulses when it comes to presidential powers is honorable — but not an honorable success.

Congress’ power to make laws when it comes to foreign policy is not determined by a constitutional fuse box: It has either "enough" power or none at all. And it was pretty unambiguous in the 1980s about keeping the United States, for instance, from funding the Contras (if this indeed is one of the disputes in which the writer favored the Reagan administration over the Democratic Congress.)

White Houses have two routes when it comes to shaping laws affecting foreign policy (or anything else.): They can influence the scope, specificity and ambiguity of a law before it is passed, or they can ignore it once it is passed. (For instance, through those signing statements.)

The last Bush administration favored more of the former strategy in its first term and more of the latter in its second. The Obama administration appears, so far, to favor the latter strategy of negotiating ambiguity (although this case is a notable exception). One notable and newsworthy example: This White House helped make sure it had exits written into 2009 language regarding funding a Palestinian Authority that includes Hamas — exemptions it appears it may now exploit.

When it comes to a law written as closely as the Jerusalem passport law, if we are, as the writer says, a nation of laws, the Obama administration would have little choice but to abide by this one.

That would be equally true of other presidents and other laws.

UPDATE: Seth Lipsky writes in to say that my account of neoconservative arguments with Congress during the 1980s misses the point: It wasn’t the funding, it was a matter of supporting a president leading a country at war:

We felt Congress was wrong, but never argued — insofar as I can recall (I could be wrong) — that Reagan could spend money except pursuant to an appropriation. That is constitutional bedrock for sure (Art. I, Sec. 9: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law.). What I recall the debate as being is what the President can do with a funded standing or covert army. By my lights any president has a helluva lot of leeway once the army is set up and underwritten. Once a war has begun — that is, once enemies have appeared in arms against us, no matter who started it — it’s questionable, to my reading of the Constitution, whether the Congress can constitutionally fail to support a president who seeks to defend the country (the constitutional oath etc). There were these kinds of questions in the 1980s. But these are not the kinds of questions that are alive in MBZ v Clinton, which is therefore an easier call.