As with any issue that relates to the Middle East, and particularly with those involving US policy toward Israel, the Supreme Court’s ruling yesterday in Zivotofsky v. Kerry has engendered vast amounts of commentary from all sides. I thought it might be useful to consider the case apart from the deep emotional response provoked by Jerusalem and Israel, and clarify what the decision actually means.
First a very brief history of the case: In 2002 Congress passed an appropriations bill that included a provision recognizing Jerusalem as the capital of Israel. A subsection of that provision allowed US citizens born in Jerusalem to specify Israel on their passports. This was notable because the United States had a long-standing policy of neutrality where Jerusalem is concerned. The US had refused to recognize any nation as having control over Jerusalem, and treated Jerusalem as a unique entity. Every President since Israel’s founding had maintained this policy of neutrality and stressed that control of Jerusalem was a matter for the Israelis and Palestinians to resolve with the help of the United Nations. When President George W. Bush signed the appropriations law into effect, he did so with a signing statement saying he would not enforce the Jerusalem provision because it infringed on the authority of the President to make a major foreign policy decision, and enforcement of that part of the law could have negative consequences for our relations in the region, and our national security. He directed the State Department to act accordingly. Even with the signing statement, President Bush felt compelled to issue additional public statements that he would not enforce the Jerusalem provision because it had sparked concern and an outcry in the region from those who saw this as a potentially disastrous departure from decades-old foreign policy. When President Obama took office, his administration continued his predeccesor’s policy of opposing enforcement of the Jerusalem law.
The Zivotofkys’ son was born in Jerusalem in late 2002 and they sought to have his passport read Jerusalem, Israel. The State Department refused per their regulations and President Bush’s directive that the new law would not be enforced. The Zivotofskys sued, and after numerous appeals, and a remand from the Supreme Court, The US Court of Appeals for the DC Circuit decided that the Jerusalem provision was unconstitutional.
Yesterday, the Supreme Court affirmed that ruling. With its 2002 act calling for recognition of Jerusalem as the capital of Israel, Congress had violated the separation of powers under the Constitution. By a vote of 6-3, the Court held that the President has exclusive authority over decisions involving recognition of foreign sovereigns. The decision is an extraordinary study in legal history as befits a first-of-its kind ruling. Extrapolating from the President’s exclusive authority under the Constitution to appoint ambassadors, receive ambassadors and heads of state, and to engage in direct diplomatic discussions with other heads of state, as well as 240 years of Presidents being the ones to make such decisions of reception and recognition, in the end, the Court found that the State Department had the weight of constitutional history and practice, legal scholarship and precedent on its side. Only the President can recognize a foreign sovereign. Congress cannot force the President to contradict his or her own foreign policy decisions.
Here is what the Court did not decide. It did not hold that Jerusalem is NOT the capital of Israel. It did not hold that Congress has no role to play in foreign policy. It did not hold that Americans born in Jerusalem are stateless individuals. It did not hold that the policy of neutrality pursued for decades by every President since Truman has been helpful or successful. It did not decide who has control over Jerusalem.
The only thing the Court did was decide who has the power to decide. And in this narrow case, that power resides in the presidency.