While the country is riveted on the hearing on the constitutionality of ObamaCare, the Supreme Court handed down a ruling on Monday that was also significant. In an 8-1 decision, the high court ruled that a legal challenge to the State Department’s refusal to state on a child’s passport that he was born in Jerusalem, Israel, could proceed. The majority overturned a lower court decision that claimed Congress exceeded its authority when it passed legislation in 2002 requiring that Americans born in the city of Jerusalem be allowed to name Israel as their birthplace in official documents. While all this ruling did was to specify that the administration’s decisions on such questions are not beyond the scope of judicial review, it will allow the courts to try the case, a development that supporters of Israel’s claim to its capital cheered.
Ironically, the lawyers for those demanding the right to name Jerusalem as part of Israel argued that forcing the State Department to follow Congress’ instructions was merely a matter of clarifying a personal status issue rather than making foreign policy. That’s somewhat disingenuous, as the obvious intent of the lawsuit is to force the government’s hand. But though the administration is right to contend that the president has the power to make foreign policy decisions, the tangle over Jerusalem is a poor example of that principle. The question that must ultimately be decided is whether the executive has the power to directly override the law especially on a point where common sense is with the legislature.