Young Man Without A Country

The Supreme Court of the United States of America has just declared 12-year-old Menachem Zivotofsky stateless.

Menachem was born in Yerushalayim. His parents, Ari and Naomi Zivotofsky, are American citizens. When Menachem was born, they dutifully followed U.S. protocol and registered his birth with the U.S. consulate in Yerushalayim.

Back in the day, I also went to the consulate in Yerushalayim to register the births of my own children. It’s been a while, so I just asked my kids what their passports and their kids’ passports say. Sure enough, they say “Jerusalem.” But they don’t say any country.

My daughter Malkie wrote me, “When the boys’ U.S. Report of Birth Abroad stated they were born in Jerusalem and no country listed, I was upset about it. How come my kids, as well as their mother, were only born in a city, not in any country?”

My daughter laid the blame at President Obama’s doorstep. While I’d agree that the president gets more exercise overstepping his bounds than he does playing golf, her accusation is only partly accurate. The entrance to the White House already had a mound of blame on this issue before Mr. Obama moved in.

Why is it that I went to the consulate, not the embassy? Because there is no American Embassy in Yerushalayim. Despite repeated promises from presidents, the U.S. has steadfastly refused to move the embassy to where it belongs — Yerushalayim.

The 1976 Democratic Party platform stated clearly: “We recognize and support the established status of Jerusalem as the capital of Israel, with free access to all its holy places provided to all faiths. As a symbol of this stand, the U.S. Embassy should be moved from Tel Aviv to Jerusalem.”

The president elected under that platform was Jimmy Carter. The promise wasn’t worth peanuts.

In 1984, Sen. Daniel Patrick Moynihan (D-N.Y.) proposed that the United States move its embassy from Tel Aviv to Jerusalem. He said, “Jerusalem is the capital of the State of Israel and our embassy in that State should be in its capital.” Senator Moynihan, bless his soul, took it even further. He prophetically said that by giving in to U.N. pressure to keep the U.S. Embassy out of Jerusalem, the United States is implying that its ‘‘attachment to the State of Israel is tentative and subject to change.’’

That same year, President Ronald Reagan said it would be “most unwise” to move the embassy to Jerusalem. He went so far as to imply that he would veto any law requiring the move.

In 1995, Congress passed the Jerusalem Embassy Act. Had it been enforced, the U.S. would have moved its embassy to Yerushalayim by 1999. But the bill had a loophole big enough to sail a tanker of Washington hot air through. The president was allowed to delay implementation every six months. And every president since Bill Clinton has sailed on through. They looked at the bill as hampering the president’s authority to set foreign policy. For the same reason the State Department has consistently refused to enforce the 2002 law enacted as “Record of Place of Birth as Israel for Passport Purposes.”

So Menachem Zivotofsky remains a man without a country.

After his relegation to stateless limbo, his parents began the long battle to put Menachem on terra firma. The battle went all the way to the Supreme Court.

In social studies we were taught that the Constitution provided for “separation of powers” with “checks and balances” to ensure that none of the three branches of government — executive, legislative and judicial — gets too powerful and rules unilaterally.

So what’s a powerful president supposed to do if he knows better? In the 1930s, President Franklin Delano Roosevelt came up with a plan to deal with the “nine old men” on the Supreme Court who refused to retire. He proposed that for every justice who reaches age 70 and doesn’t quit, the president would be empowered to appoint an additional justice (up to six).

Despite FDR’s popularity, having won a landslide victory, his plan was widely denounced as “packing the court.” Roosevelt responded that if that means he is being accused of wishing to “place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided … no president fit for his office would appoint … that kind of appointee. …”

President Obama, for his part, has done a great deal of liberalizing the Court. And he made it eminently clear what he wanted the decision to be in the Jerusalem, Israel case. He didn’t want it interfering with his authority to recognize the status of Jerusalem.

I’m not calling the justices of the Supreme Court spineless. Perhaps just malleable.

I think that Justice Antonin Scalia put it best in his dissent, which he chose to read aloud from the bench, with feeling:

“Recognition is a type of legal act, not a type of statement. It is a leap worthy of the Mad Hatter to go from exclusive authority over making legal commitments about sovereignty to exclusive authority over making statements or issuing documents about national borders.”

Would you like a little more tea?