Commentary Magazine


Topic: Congressional power

The Courts and Jerusalem

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.

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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.

The case concerns one Menachem Zivotofsky, the son of American citizens living in Israel who was born in Jerusalem after Congress passed a law specifically stating that the State Department should list the children born in the city as being in Israel. While President Bush signed the bill after its passage, he stated at the time that he would not enforce it, and the Obama administration has continued this practice.

The conflict within the government is clear. In both 1995 and again in 2002, Congress clearly stated that it recognized a united Jerusalem as Israel’s capital. However, the United States has never formally recognized Israel’s claim to any part of the city, keeping its embassy in Tel Aviv and maintaining a separate consulate in the city. The administration, as did its predecessors, refuses to recognize Congress’ power to intervene in the decision regarding the recognition of countries and territories as being strictly a matter of executive privilege. The question is whether any court will be willing to state that Congress has the ability to create such a mandate over the objection of the president.

While the Zivotofskys will now get their day in court, they still claim they are not asking the judiciary to decide a foreign policy question. But that is exactly what they are doing, because the word “Israel” following the word “Jerusalem” on a U.S. passport will be a signal to the rest of the world of American recognition of the Jewish state’s claim to its capital.

But while any president has the right to conduct foreign policy, the right of Congress to set parameters within which the executive may operate is not unreasonable. In his risible sole dissent, Justice Stephen Breyer claimed that allowing Congress to override the president on such a matter may cause harm, the notion that the wisdom of a diplomatic position that denies reality — the fiction that Jerusalem has not always been Israel’s capital and that the unified city has been so for nearly 45 years — should be beyond the capacity of either the legislature or the courts. But this is a poor argument that does nothing to advance America’s interests or the law.

The direct intent of Congress here is not in question. The idea that great harm to the country would be done were the law to be enforced is not proven. Were the courts to allow the Zivotofskys’ challenge to be upheld, it would remind the world of something it should already be well aware: the American people through their elected representatives recognize that Jerusalem is part of Israel.

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