Bottom Line: Supporters of Israel need a more supportive President.
The Supreme Court decided the much-anticipated Zivotofsky case, involving a congressional law which permitted American citizens born in Jerusalem to choose to list “Israel” as their place of birth, rather than just “Jerusalem,” as the State Department mandated. (Full Opinion here.)
Needless to say, the case had enormous political implications, even if the legal issue itself was not particularly political. The Executive Branch refuses to recognize Jerusalem as the capital of Israel, or even though Israel has declared Jerusalem to be its capital both when it was divided prior to 1967, and after it was reunited in 1967. Worse still, for passport purposes it does not even recognize Jerusalem as part of Israel at all.
The political gloss is that the Executive Branch claims the issue should be subject to negotiations, but the reality is that the State Department fears backlash from the Palestinians and Israel-hating nations (i.e., most of the United Nations) should it side with Israel’s claim to Jerusalem as its capital.
Congress, on the other hand, is in sync with American domestic public opinion, which is overwhelmingly pro-Israel, so in 2002 Congress passed a law to force the State Department’s hand on the issue.
The next year, Menachem B. Zivotofsky was born and his parents wanted his passport to record Israel as his place of birth.
No way, said the State Department, leading to litigation culminating in the current decision holding that the law violated the separation of powers, which vests the ability to recognize foreign sovereigns only in the Executive Branch, the Court held.
ScotusBlog summarizes the ruling:
The ruling in Zivotofsky v. Kerry obviously was a difficult one for the Court: argued in early November, the case took more than seven months to prepare, emerging Monday in five separate opinions in a six-to-three split. The decisive opinion, written by Justice Anthony M. Kennedy, carried the day, nullifying a 2002 law in which Congress had ordered the State Department to list Israel as the place of birth for U.S. citizens who had been born in Jerusalem, if they asked for that notation on official documents — an order that directly contradicted generations of presidential decisions to maintain U.S. neutrality on the question of which nation controls Jerusalem.
Before reaching the question of that specific law’s constitutionality, the Court for the first time in history ruled that the president has the exclusive power to decide what other foreign nations the United States will formally recognize for nation-to-nation dealings, and that Congress may not force the president to make a different choice about that. In fact, most of Justice Kennedy’s thirty-page opinion was devoted to that core question about the Constitution’s distribution of foreign policy powers.
From that exclusive authority to “speak with one voice for the nation” about recognizing other governments, the Kennedy opinion drew the separate conclusion that what is said on U.S. passports that might make a statement about what nation is recognized as sovereign is up to the president. While Congress has some role over passport policy, the opinion said, it simply has no authority to order the executive branch to issue a document that says something that the president has refused to say as official policy.
The Court claimed to limit the reach of its decision:
In holding §214(d) invalid the Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular. This case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds. Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports.
In reality, this was a huge victory for Separation of Powers in favor of Executive Branch authority, as Jonathan Adler pointed out at Volokh Conspiracy.
Chief Justice Roberts noted the unprecedented nature of the ruling:
Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs. We have instead stressed that the President’s power reaches “its lowest ebb” when he contravenes the express will of Congress, “for what is at stake is the equilibrium established by our constitutional system.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637–638 (1952) (Jackson, J., concurring).
JUSTICE SCALIA’s principal dissent, which I join in full, refutes the majority’s unprecedented holding in detail. I write separately to underscore the stark nature of the Court’s error on a basic question of separation of powers….
Resolving the status of Jerusalem may be vexing, but resolving this case is not. Whatever recognition power the President may have, exclusive or otherwise, is not implicated by §214(d). It has not been necessary over the past 225 years to definitively resolve a dispute between Congress and the President over the recognition power. Perhaps we could have waited another 225 years. But instead the majority strains to reach the question based on the mere possibility that observers overseas might misperceive the significance of the birthplace designation at issue in this case. And in the process, 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.
Justice Scalia hammered home the mushy quasi-political nature of the majority opinion:
In the end, the Court’s decision does not rest on text or history or precedent. It instead comes down to “functional considerations”—principally the Court’s perception that the Nation “must speak with one voice” about the status of Jerusalem. Ante, at 11 (ellipsis and internal quotation marks omitted). The vices of this mode of analysis go beyond mere lack of footing in the Constitution. Functionalism of the sort the Court practices today will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty….
Under the Constitution they approved, Congress may require Zivotofsky’s passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President’s preference for neutrality about the status of Jerusalem.
The moral of the story is that elections have consequences. And when it comes to foreign affairs presidential elections have more consequence than congressional elections.
It is absurd that the U.S. does not recognize Jerusalem as Israel’s capital. That will be a political issue in the 2016 campaign, and thereafter as campaign promises in the past to move the U.S. Embassy have not survived.DONATE
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