Supreme Court takes ‘signing statements’ case
WASHINGTON — A constitutional challenge to the president’s long-standing claim of exclusive power over foreign affairs comes before the Supreme Court this week wrapped in a 11-year-old dispute over a single word in the passport of an American boy born in Jerusalem.
The justices will hear arguments Monday over one of former President George W. Bush’s “signing statements” in a case that could decide when, if ever, the nation’s chief executive may ignore a law passed by Congress.
The outcome may further cramp President Obama if he faces a Republican-controlled Congress next year and could limit the power of future presidents as well.
“Many presidents over many decades have claimed exclusive power in signing statements involving national defense, the intelligence agencies and the State Department,” said Charles Tiefer, a University of Baltimore law professor. “This case has the potential to change that.”
The case began in October 2002 when Menachem Zivotofsky was born in Jerusalem to American parents. They asked the U.S. Consulate to list Israel as his birthplace. Officials refused, citing the State Department’s policy of neutrality toward the status of Jerusalem, which Palestinians also claim as their capital.
A month before the boy’s birth, however, Congress had passed the Foreign Relations Authorization Act, which included a provision giving U.S. parents of children born in Jerusalem a right to have the child’s place of birth recorded as Israel on his passport.
For this Jewish family and many others, “there’s a strong emotional sense of identification with Israel, and they would like that to be recognized on their son’s passport,” said Alyza Lewin, a Washington lawyer who is representing the parents.
But on signing the bill, Bush issued a statement saying he would not abide by the passport provision. It “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”
Throughout American history, presidents have attached signing statements to legislation they approve, usually to clarify how they would enforce the new law.
But Bush’s frequent use of such statements drew fire from critics who said he was relying on them as a kind of line-item veto to nullify provisions passed by Congress that he believed infringed on presidential authority.
His use of signing statements rankled liberals, including then-Sen. Obama, who complained of unchecked executive power.
But in the pending Supreme Court case, Obama’s lawyers are defending Bush’s claim that only the presidentmay decide a sensitive foreign policy matter.
“The president has exclusive authority to recognize foreign governments … as well as their territorial limits,” the sttorneys argue in their brief to the Supreme Court.