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Jerusalem is Israel’s Capital, with or without Supreme Court Recognition

by Shmuel Rosner

April 22, 2014 | 3:03 am

The Supreme Court Justices gather for an official picture in Washington on Sept. 29, 2009. Photo by Reuters/Jim Young

The decision by the U.S. Supreme Court to give the Zivotofsky case yet another day in court — to hear the case — is already prompting the type of response you’d expect. I’ve been following this case and writing about it for years, and it never fails to prompt the same response. Usually for the wrong reasons, as this isn’t really a battle over the status and fate of Jerusalem, Israel’s capital, but rather a fight between congressional and executive authority. That is why the courts have been struggling with it, and that is why the Supreme Court is going to discuss it.

If you’re not familiar with the case, the story, in a nutshell, is as follows: an American child was born in Jerusalem. The United States — its State Department — insists that Jerusalem doesn’t mean “Israel,” so the passport cannot say “Israel.” Congress passed a law that recognizes the right of an American born in Jerusalem to have “Israel” on his or her passport. The administration, first the Bush administration and now the Obama administration, contends that Congress has no right to make such decisions, as foreign policy is directed by the administrative branch.

So, yes, Jerusalem is the city in question. And, no, the court doesn’t need to decide the status of Jerusalem, it needs to decide who has the right to determine the type of passports that American citizens get. When a federal court made a decision last year, declining the Zivotofsky request, I wrote that this “was simply an administrative battle over who wields authority, and in this battle — and this battle alone — the U.S. administration defeated the U.S. Congress. It should also be noted that this was just a temporary victory. The case is headed back to the Supreme Court for further deliberation.”

The good news, then, is that the saga is finally coming to its legal ending. The potential consequences can be of some significance — Seth Lipsky, in a piece in Haaretz, believes they can be “huge” at “a time when we have an administration that wants to retreat overseas and a Congress that doesn’t.” Namely, if the court decides Congress can make foreign policy decisions, it doesn’t have to end with the Zivotofsky passport and doesn’t have to end with Jerusalem. I have my doubts: Even if the court decides to grant Zivotofsky his request, I believe it will be very careful not to make a sweeping decision that is going to make the American foreign policy mechanism even more chaotic than it is today. And if, and when, the court decides to give Congress more say on foreign policy, the result doesn’t have to be the type of result Lipsky expects — it can also prompt Congress to restrain itself more than it has in the past, when it could act without much regard to consequences, knowing that now the administration can no longer ignore its directives.

Sam Kleiner writes in The New Republic, “Whatever one thinks of the peace process, it ultimately is the constitutional job of the president to decide when and how to recognize foreign powers, and it is not a job that Congress should get into with one-off pieces of legislation.” That is one way of summarizing the view of those opposing the Zivotofsky request. Yet, if Kleiner makes it sound obvious, the Supreme Court seems to disagree — had it agreed that this was so obvious, it wouldn’t have taken the case. In an editorial in the New York Sun you can get some sense of the other viewpoint (also written, I presume, by Lipsky): “It is also about how much say the people of America are going to have in the conduct of their own foreign policy. Is it going to be left to a permanent bureaucracy of civil servants who are clearly hostile to the express wishes of the elected legislature?” 

David Adler of Boise State University recently wrote an opinion piece supporting a similar position: “The circuit court’s indulgence of dicta — judicial commentary unrelated to the issue at hand — has transformed a narrow, clerk-like, ministerial presidential duty to receive ambassadors and foreign ministers into a towering structure of discretionary power to conduct American foreign policy. Dicta piled upon dicta. This is judicial error running riot, and the Supreme Court should correct it.”

It is worth noting that at the moment Israel might wish for a decision that puts more power in the hands of the “public” — that is, in the hands of Congress. But such a decision can be a double-edged sword if the public mood shifts. It can also be a double-edged sword if the legal determination of a faraway court results in Israel having to deal with a crisis in Jerusalem that it did not invite. And it can be a double-edged sword if such legal determination prompts the administration to quickly compensate the Palestinians for it with an insertion of new language or new policy regarding Jerusalem. 

Ultimately, as I wrote a year ago following the lower-court decision, it is both true and better that “the question of Jerusalem’s status will not be determined in the courts, nor in the corridors of the U.S. State Department. The decision will be made in the exact same way that all other momentous decisions are made: through determination and guile or, in brief, through politics.”

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