The Consequences of Obama's Jerusalem Passport Supreme Court Win
Why Congress's ability to weigh in on foreign affairs has taken a blow.
In a 6-3 ruling on Monday, the Supreme Court sided with the Obama administration and struck down a law allowing Jerusalem-born Americans to record Israel as their place of birth on their passports. “Put simply, the nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not,” Justice Anthony M. Kennedy wrote. And if the nation must speak with one voice, he added, and “that voice must be the President’s.”
The law in question was part of the Foreign Relations Authorization Act, passed in 2002 and signed by President Bush. Section 214 instructed the State Department to “record the place of birth as Israel” in the passports of Jerusalem-born American children if their parents requested that designation. However despite signing the bill, Bush insisted, “U.S. policy regarding Jerusalem has not changed,” and that his administration was not legally bound to follow that provision. He further insisted the resolution “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.”
Twelve year old Menachem Zivotofsky was born in Jerusalem shortly after the law was passed, and his parents requested the designation. The State Department refused to abide the request leading to the case that wound up before the Court. In Zivotofsky v. Kerry, the majority Justices determined that Congress was “overstepping its bounds” when it tried to press Obama to honor the Zivotofsky’s request. The ruling follows a similar one made by the U.S. Court of Appeals for the District of Columbia Circuit in 2013, which also took Congress to task for its “impermissible” intrusion on the powers of the president, recognizing his “presumptive dominance in matters abroad,” Judge Karen LeCraft Henderson wrote in that 42-page opinion. Henderson further explained that since Israel’s creation in 1948, presidents have “steadfastly declined to recognize any foreign nation’s sovereignty over that city.”
The Obama administration used virtually the same argument in its SCOTUS brief, noting that America’s decades-long policy “has been to recognize no state as having sovereignty over Jerusalem, leaving the issue to be decided by negotiation between the parties to the Arab-Israeli dispute.” Solicitor General Donald B. Verrilli also argued that Congress’s authority to regulate passports doesn’t give it the right “to command the Executive branch to issue diplomatic communication that contradicts the government’s official position on recognition.”
Zivotofsky’s attorneys countered with the argument that the case was not about formal recognition of Jerusalem, but merely a matter of how an American is identified on his or her passport. The Court ultimately disagreed.
Kennedy was joined by liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Conservative Justice Clarence Thomas also agreed the law was unconstitutional, but did not endorse Kennedy’s assertions. Chief Justice John G. Roberts Jr., and Justices Antonin Scalia and Samuel A. Alito Jr. opposed the ruling.
Roberts was particularly incensed. In a dissent joined by Alito he claimed the Court had ventured into uncharted territory. “The court takes the perilous step—for the first time in our history — of allowing the president to defy an act of Congress in the field of foreign affairs,” he wrote. Roberts further insisted the Court was in error in stating that a simple passport change amounted to Congress forcing Obama’s hand. Rather, the decision was “based on the mere possibility that observers overseas might misperceive the significance of the birthplace designation.”
Scalia was also disappointed and emphasized that disappointment by reading portions of his dissent aloud from the bench. “The text and structure of the Constitution divide responsibility for foreign policy, like responsibility for just about everything else, between the two coordinate, equal political branches,” he said. “A principle that the nation must have a single foreign policy, which elevates efficiency above the text and structure of the Constitution, will systematically favor the president at the expense of Congress.”
Roberts and Scalia make viable arguments. As Israeli lawyer Nitzana Darshan-Leitner, head of lawfare NGO Shurat Hadin explains, while there is always tension between the Legislative and Executive Branch, this ruling could affect other matters. She cites American financing of the Palestinian Authority as another possible frashpoint. “Congress decided to limit the transfer of funds to the PA from the State Department, so they may only be transferred if there is certainty that they do not go toward terrorism,” she states. “The State Department has been ignoring Congress, and when the matter reaches the courts, there will again be a debate over who decides foreign policy, the legislators or the State Department.”
A more significant consequence may occur when the United Nations General Assembly opens its next session on Sept 15. As New York Sun’s Rick Richman reveals, “there have been rumors that France plans to submit to the Security Council a resolution to prescribe a Palestinian state in the disputed territories of Judea and Samaria, with a capital in Jerusalem, with a negotiating deadline of 18 months,” one the Obama administration may endorse, or allow to pass with an American abstention.
This flies in the face of one of the arguments made by the administration during the case, when they insisted recognizing Jerusalem as the capitol of Israel “would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.” Richman notes “it would now be remarkable – to use the least loaded word – for the administration to turn around and support a United Nations resolution specifying a Palestinian state that includes Jerusalem,” he writes.
All without the Congressional approval the Court has just deemed unnecessary. “This is not to say Congress may not express its disagreement with the president in myriad ways,” Justice Kennedy added. “For example, it may enact an embargo, decline to confirm an ambassador, or even declare war. But none of these acts would alter the president’s recognition decision.”
One is left to wonder whether Kennedy or the other five Justices on the majority side of the equation even considered the possibility the Obama administration would abide the establishment of a Palestinian state with Jerusalem as its capitol.
Historically, Jerusalem was divided into east and west factions following the war in 1949 that broke out after Israel’s creation. The Jewish State occupied the entire city following the Six Day War in 1967, eventually annexing the eastern part, a move unrecognized by either the United States or the U.N. The city’s status remains one of the sticking points in the so-called peace negotiations. Peace negotiations that eternally attempt to reconcile the seemingly irreconcilable reality of a Jewish State attempting to find a middle ground, and a faction of Arabs who refuse to recognize its existence, and/or yearn for its annihilation.
The Court’s decision was praised by chief Palestinian negotiator Saeb Erekat, who said it sends a clear message to Israel that “its policies of colonization are null and void.” Attorney Darshan-Leitner characterized it as “a real kick in the face of every Israeli citizen, that such a great friend of Israel’s does not recognize its rights.” Given Barack Obama’s ill-disguised contempt for Israeli Prime Minister Benjamin Netanyahu, coupled with his administration’s dogged attempt to allow Israel’s mortal enemy Iran to acquire nuclear weapons capabilities, perhaps it is not unreasonable to conclude the term “good friend” currently has a decidedly hollow ring. As the song says, “see you in September,” when the administration’s good friendship—or lack thereof—will become far more apparent. In the meantime the Supreme Court has paved the way for a more forceful implementation of the Obama administration’s foreign policies. Policies that have the entire Middle East both at war and on the verge of a nuclear arms race.
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