National Jewish organizations were all but unanimous in their dismay at this week’s Supreme Court decision upholding the Obama Administration’s refusal to allow an American boy born in Jerusalem to have “Israel” given as his place of birth in his passport. “The question for the Supreme Court in this case involved a simple and ministerial act,” wrote ADL President Abe Foxman in a statement after the ruling. “The answer to that should have been an easy yes. And the court did not have to issue a sweeping decision about executive power to reach that conclusion.”
That’s not really the case, however. Underlying the supposedly simple ministerial act was a complex constitutional dispute between the legislative and executive branches over the power to recognize sovereignty in foreign countries.
Back in 2002, Congress inserted into the Foreign Relations Authorization Act a statute (section 214) headed “United States Policy with Respect to Jerusalem as the Capital of Israel.” In subsection (d), the Secretary of State was instructed to “record the place of birth as Israel” when issuing a passport to a citizen born in Jerusalem, if requested to do so.
When he signed the bill into law, President George W. Bush rejected the statute in a signing statement, saying that it would “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. U.S. policy regarding Jerusalem has not changed.” That policy, in place since the establishment of the State of Israel in 1948, is that the status of Jerusalem is unresolved.
What the Supreme Court did in Zivotofsky v. Kerry was uphold this Bush Doctrine as a function of the President’s “recognition power” – which is derived from the Constitution’s statement that the President “shall receive Ambassadors and other public Ministers.” (Art. II, §3) “Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear,” wrote Justice Anthony Kennedy in his majority opinion. “Congress cannot require him to contradict his own statement regarding a determination of formal recognition.”
As the old saying goes, hard cases make bad law, and there’s no doubt this was a hard case. The precedents were mixed; the constitutional underpinnings modest. But it’s clear that Congress’ purpose in §214(d) was to signal U.S. recognition of Israeli sovereignty over Jerusalem.
That a solid majority of the Supreme Court – including its three Jewish justices – saw this as exceeding congressional power is important to take seriously. The significance of acknowledging a city’s national status on a passport is comparable to the significance of receiving an ambassador.
In this regard, it’s worth noting that, like with most other countries, the United States maintains its embassy in Tel Aviv, even though back in 1995 Congress passed the Jerusalem Embassy Act to relocate it to Jerusalem. For 20 years, presidents have declined to implement it for the same reasons as their refusal to implement §214(d). Instead, every six months they issue a waiver, as provided in the Act, suspending its implementation “to protect the national security interests of the United States.”
None of this is to say that the United States should not at some point recognize Jerusalem as the capital of Israel. And, in due course, as the capital of Palestine. The two-state solution to the Arab-Israeli conflict envisions both.
Under the two-state solution, there will be a Jerusalem, Palestine, geographically distinct from Jerusalem, Israel. And the passport of an American citizen born in one will give “Palestine” as the place of birth, and the passport of an American citizen born in the other will give “Israel.” May this come in our time.