Tag Archives: Jerusalem

Trump doesn’t need to divest: Opposing view

by David B. Rivkin Jr. and Lee A. Casey

December 26, 2016, in USA Today

President-elect Donald Trump is perfectly entitled to retain his business holdings, and to permit his adult children to run those businesses, as a means of avoiding conflicts-of-interest during his presidency. The Constitution does not require him to divest his holdings, nor do other federal laws.

Although many previous presidents have chosen to put their personal holdings in a “blind trust,” this was not required and in Trump’s case such a requirement would be particularly iniquitous. Trump could not simply liquidate his holdings in the public securities markets at market prices. He would have to find buyers for a vast array of real estate holdings and ongoing businesses. Each of those potential buyers would be well aware of his need to sell, and to sell quickly, and the value of his holdings would be discounted.

In addition, of course, the Trump Organization is a family business, as it has been since the time of Trump’s father. Most of his children are employed in that business. Neither law nor logic require Trump to pull the rug out from under them. A newly elected president is simply not required to make such personal sacrifices as the price of assuming an office to which he was constitutionally elected.


Let the President Decide on Jerusalem

Since the 1990s, Congress has maintained that Jerusalem should be recognized as Israel’s capital. Since Israel’s founding in 1948, presidents have stated that Jerusalem’s status can only be decided as part of a broader peace settlement. On Monday this dispute again reached the Supreme Court, and it offers the justices a unique opportunity to elucidate the proper way to resolve separation-of-power disputes between Congress and the executive.

Zivotofsky v. Kerry involves Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. His parents want Israel identified as his birthplace on his passport. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, permits this choice, but the secretary of state refused to comply, listing Jerusalem alone as his place of birth. The secretary argues that the law violates established U.S. foreign policy and interferes with the president’s exclusive power to recognize foreign states and their territorial extent.

In the first round of this litigation, the U.S. Court of Appeals for the District of Columbia concluded that this contest presented a political question that the courts could not answer. The Supreme Court reversed that decision, explaining that however “political” the circumstances, the question was a straightforward one of constitutional law suitable for judicial resolution.

The D.C. Circuit reheard the case last year and concluded that section 214(d) is unconstitutional because the president has the exclusive authority to determine the territorial boundaries of foreign states, their capitals and their governments—at least for purposes of U.S. diplomatic intercourse.

This authority is based in clear constitutional text that gives the president the power “to receive Ambassadors and other public Ministers.” Although the court found this language ambiguous (relying instead on historical practice and Supreme Court statements that the president alone has the power to recognize a foreign state as sovereign), the framers used this language precisely and to a purpose.

In their time, as today, the purpose of “receiving” an ambassador was not chitchat. It was a solemn act through which one head of state—usually through acceptance of “credentials” or “letters of credence”—recognizes the legitimacy of a foreign ambassador’s government—the right of his or her opposite number to send and accredit diplomatic representatives.

The critical nature of “receiving” is why, for example, the first American representatives sent to France in 1776 were not “received” by King Louis XVI until the colonies showed they had some chance of success in their war for independence from Britain by winning the battle of Saratoga in 1777. “Receiving” the Americans as diplomats inherently involved France’s recognition of the new country. By contrast, as noted by Emmerich de Vattel in his highly influential 18th-century treatise, “The Law of Nations,” refusing to receive diplomats does a state “a very great injury; it is contesting its sovereign dignity.”

That said, Congress is not powerless. Passports are both diplomatic communications and government documents, and Congress clearly has some constitutional authority to regulate their content—including its powers to regulate foreign commerce, control naturalization, and prescribe rules by which government agencies and departments operate.

Unlike many other separation-of-power cases, the Supreme Court is not presented here with a situation in which one of the political branches is acting outside its authority. Congress and the president are both exercising legitimate constitutional powers, but in a manner that produces conflicting results. As in other areas where competing constitutional imperatives conflict, the court should use a balancing test, which measures the extent of harm suffered by each political branch.

The president prevails when the harms in Zivotofsky are balanced. A law declaring Jerusalem a part of Israel on U.S. passports severely undercuts the president’s exclusive power to recognize other sovereign nations, manifesting that the U.S. position is muddled. By contrast, if Congress is denied this power, the harm it suffers is small, as Congress remains free to regulate many other passport details, such as size, shape, color, or requiring that passages from the Declaration of Independence or Constitution be included.

Some have suggested (including Justice Anthony Kennedy during oral argument) that the branches’ interests can be harmonized by having the president add passport language, disclaiming that the “Jerusalem, Israel” reference denotes formal U.S. recognition of Jerusalem as Israel’s capital. But such a disclaimer accomplishes nothing, giving neither Congress nor the president any solace. And the conveyance of a unified national position on Jerusalem’s status would remain in doubt, potentially undermining the president’s ability to negotiate Middle Eastern peace.

Zivotofsky presents an important opportunity for the Supreme Court to recognize that, when the two political branches clash over lawful but conflicting powers, balancing harms and harmonizing interests is the proper constitutional path.

Messrs. Rivkin and Casey, partners at the firm Baker Hostetler LLP, served in the White House Counsel’s Office and the Justice Department in the Reagan and George H.W. Bush administrations.

Source: http://online.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-let-the-president-decide-on-jerusalem-1415319014

The myth of occupied Gaza

By David B. Rivkin Jr. and Lee A. Casey

(originally published in The Washington Post on Saturday, May 10, 2008)

Hamas claims that former president Jimmy Carter’s recent meeting with its leader, Khaled Meshal, marks its recognition as a “national liberation movement” — even though Hamas rockets fired from the Gaza Strip, which Hamas rules as an elected “government,” continue to rain down on Israel’s civilian population. While Hamas is clearly trying to bolster its legitimacy, the conflict along Israel’s southern border has a broader legal dimension — the question of whether, as a matter of international law, Israel “occupies” Gaza. The answer is pivotal: It governs the legal rights of Israel and Gaza’s population and may well set a legal precedent for wars between sovereign states and non-state entities, including terrorist groups such as al-Qaeda.

Israel’s critics argue that Gaza remains “occupied” territory, even though Israeli forces were unilaterally withdrawn from the area in August 2005. (Hamas won a majority in the Gazan assembly in 2006 and seized control militarily in 2007.) If this is so, Jerusalem is responsible for the health and welfare of Gazans and is arguably limited in any type of military force it uses in response to continuing Hamas attacks. Moreover, even Israel’s nonmilitary responses to Hamas-led terrorist activities — severely limiting the flow of food, fuel and other commodities into Gaza — would violate its obligations as an occupying power.

Israel, however, is not an occupying power, judging by traditional international legal tests. Although such tests have been articulated in various ways over time, they all boil down to this question: Does a state exercise effective governmental authority — if only on a de facto basis — over the territory? As early as 1899, the Hague Convention on the Laws and Customs of War on Land stated that “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.”

The Hague Convention is a founding document of the modern law of armed conflict, and its definition of occupied territory was woven into the 1949 Geneva Conventions. There, the relevant provision provides that “[i]n the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations,” although certain protections for the populations continue “to the extent that such Power exercises the functions of government in such territory.” That is the key — exercising the functions of government. This proposition was recognized in a seminal Nuremberg prosecution, the Trial of William List and Others.

It is because an occupying power exercises effective control over a territory that international law substantially restricts the measures, military or economic, it can bring to bear upon this territory, well beyond the limits that would be applicable before occupation, whether in wartime or peacetime.

The Israeli military does not control Gaza; nor does Israel exercise any government functions there. Claims that Israel continues to occupy Gaza suggest that a power having once occupied a territory must continue to behave toward the local population as an occupying power until all outstanding issues are resolved. This “principle” can be described only as an ingenious invention; it has no basis in traditional international law.

The adoption of any such rule (designed to limit Israel’s freedom of action and give Hamas a legal leg up in its continuing conflict) should be actively opposed by the United States. Its adoption would suggest that no occupying power can withdraw of its own volition without incurring continuing, and perhaps permanent, legal obligations to a territory. This issue is particularly acute regarding territory not otherwise controlled by a functioning state — failed states or failed areas of states where the “legitimate” government cannot or will not exercise effective control. Such places — call them badlands — were once rare. Over the past 15 years, though, there has been an explosion in the number of such areas, notably parts of Afghanistan, Somalia and portions of Pakistan.

Gaza is exceptional only in that its international legal status is indeterminate. Its last true sovereign was the Ottoman Porte. It was part of the British Palestine Mandate and has since been administered by both Egypt and Israel. Today, no state claims sovereign authority, though it is expected that Gaza will become part of a future Palestinian state. For its part, Hamas acknowledges no higher authority and functions as a de facto government in Gaza. It is a classic example of a terrorist-controlled badland.

Unduly handicapping states that intervene in such badlands — whether to protect their own interests, those of the local population or both — is unrealistic and irresponsible. Requiring agreement by the “international community” (whatever that may be) as a precondition for extinguishing such a designation is equally unproductive if the goal is saving lives. Consider the example of Darfur.

Even worse is pretending that groups such as Hamas are merely criminal gangs that must be dealt with as a local policing problem — just one of the potential side effects of imposing an “occupied” status on a territory. This implicates U.S. interests directly, since America’s ability to use robust armed force against al-Qaeda and similar non-state actors remains critical to defending our civilian population from attack. Efforts to limit states’ rights to use military force against such groups simply benefit the globe’s worst rogue elements and endanger the civilian populations among which they operate. Here, as in so many other areas, the traditional international law that imposes the obligations of an occupier only on states that physically occupy a territory makes perfect sense.

The writers are Washington lawyers who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. They were members of the U.N. Subcommission on the Promotion and Protection of Human Rights from 2004 to 2007.

© 2008 The Washington Post Company

Congress’s power play over Jerusalem

(Published in The Wall Street Journal, September 12, 2011)

The Supreme Court will soon decide if the U.S. must recognize the city as Israel’s capital.


The city of Jerusalem has been fought over for nearly 3,000 years and remains one of the most contentious places on Earth. This fall, the battle will reach the U.S. Supreme Court.

The case—Zivotofsky v. Clinton, brought by the parents of Menachem Binyamin Zivotofsky, a U.S. citizen born in Jerusalem on October 17, 2002—involves a 2002 effort by Congress to force U.S. recognition of Jerusalem as Israel’s capital. It sought to do so by, among other things, requiring the State Department to identify Israel as the place of birth on passports issued to U.S. citizens born in Jerusalem.

The high court must decide two things: whether the case presents a “political question,” which would prevent the court from ruling on it; and, if the court can rule, whether the Constitution allows Congress to require the State Department to identify Jerusalem as part of Israel.

The answer to the second question is clearly no. The president is the nation’s “sole organ” (Chief Justice John Marshall’s phrase) in foreign affairs. The Constitution gives him sole authority to “receive Ambassadors and other public ministers” and since George Washington’s presidency this authority has been understood to include the right to grant or withhold U.S. recognition of a foreign state’s existence, government and territorial extent. Neither Congress nor the courts can direct the president to exercise this authority in any particular manner.

The U.S. first recognized Israel on May 14, 1948, and American policy since has been that the status of Jerusalem can be determined only as part of a broader Middle East peace agreement. Congress directly challenged this policy with the United States Policy with Respect to Jerusalem as the Capital of Israel Act of 2002.

This law, enacted as part of a State Department appropriations bill, forbids the president to use federal funds to publish any listing of international capitals that doesn’t identify Jerusalem as part of Israel, and it also requires that, upon request of the citizen’s legal guardian, the place of birth of U.S. citizens born in Jerusalem be recorded as Israel.

Presidents George W. Bush and Barack Obama have both ignored this requirement because, as all judges who have so far considered this case agree, it exceeds Congress’s constitutional authority. The critical question now before the Supreme Court, though, is whether judges can even decide the dispute.

Both the trial and appellate courts refused to rule on the law’s constitutionality because they concluded that it presented a political question not appropriate for judicial resolution. However, one appellate judge, Senior Judge Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit, disagreed. He argued forcefully that the courts were perfectly capable of resolving this issue (he too would invalidate the law), just like any other challenge to a statute’s constitutionality.

It is, in fact, a close call. The “political question doctrine,” which has long been recognized by the Supreme Court, generally provides that federal courts cannot entertain certain questions involving matters that the Constitution commits to the president or Congress or both (the “political” branches). It is a critical check on judicial authority and, as such, an important aspect of our separation of powers as a whole. From that perspective, its reaffirmation in this case would be a positive development, making clear that there are limits to judicial authority that the Supreme Court is ready, willing and able to respect.

However, as Judge Edwards argues—and as Chief Justice Marshall also wrote in our republic’s infancy—it is “emphatically the province and duty of the judicial department to say what the law is.” For Judge Edwards, the courts would be doing their duty by striking down the Jerusalem as the Capital of Israel Act.

On balance, the Supreme Court should probably treat this case as a political question. The law at issue here differs in one important respect from the many federal statutes that courts consider and interpret on a daily basis: Here Congress has issued a direct command to the secretary of state, and in turn to the president, requiring action that would fundamentally change U.S. policy on Jerusalem. This is a direct congressional challenge to the president’s authority, and it presents a clear and open clash between the political branches on a subject (U.S. foreign policy) constitutionally committed to the executive. That is no place for the courts.

Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations.

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Source: http://online.wsj.com/article/SB10001424053111904583204576546430580642482.html