RUTHFULLY YOURS

“Jerusalem will remain the capital of Israel and it must remain undivided,” Barack Obama told the audience at the 2008 annual policy conference of the American Israel Public Affairs Committee (AIPAC).

But now as president, Obama is put in the uncomfortable position of insisting on the enforcement of what has been American policy on the city: that it is not only not recognized as the capital of Israel, but is effectively not considered to be part of Israel at all, as far as official records are concerned. That policy—and its seeming irreconcilability with what presidents say when they are candidates—will now come before the Supreme Court.

Just as surprising, perhaps, is that the government will be up against an 8-year-old boy in the case.

The issue began when the American parents of Menachem Binyamin Zivotofsky, a young boy born in Jerusalem, petitioned the State Department to have Menachem’s passport say “Jerusalem, Israel”—as would be the case if the American government recognized as a political and practical reality that Jerusalem is the capital city of the sovereign state of Israel.

As the Washington Post reported: “ ‘The status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,’ the government said in its brief to the court. It is not one in which the United States has been willing to choose sides.”

But in actuality, the United States has in fact been willing to choose sides. The Palestinians have argued that they should get to sign off on any recognition of the city’s sovereignty. American diplomats prefer this side of the argument, and presidents have as well. In 2002, Congress passed a provision in a larger foreign relations bill that cleared the way for families like the Zivotofskys to request that “Israel” be put on their passports in situations like Menachem’s. President George W. Bush affixed a signing statement reiterating that American policy toward Jerusalem has not changed.

The Supreme Court case then will center on the question of executive versus congressional power on such an issue, according to John O. McGinnis, professor of constitutional law at Northwestern University who served as deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice from 1987-1991.

The court, McGinnis said, will first determine whether it is a political question, i.e. whether the court should decide who should decide such a question. If they rule that it is a political fight between the executive and legislative branches, they will leave them to that fight.

“Congress has its weapons—refusing to confirm people, not funding certain things—to force the executive to comply,” McGinnis said. “The executive can resist.”

In such a case, the plaintiff will “lose” in that the court will not even make the decision, and the president’s standoff with Congress will continue. But the second possibility is that the court will rule that it is, in fact, a constitutional issue and thus that they can decide who is right.

McGinnis laid out the basics of the two arguments. The executive branch will argue that “the Constitution has a clause saying the president shall receive ambassadors. And from that, some might interpret, it’s really up to the president to decide recognition of nations. And you might say well, in deciding recognition of nations you’ve got to decide what those nations are and what their borders are. When you receive an ambassador from somewhere, you decide, well: where is that somewhere?”

“The argument for Congress,” he continued, “is that Congress, or instance, establishes how to get passports, all those sorts of things. So then this [case] is necessary and proper to their operations of the State Department.”

The signing statement in itself, he said, is not a legal defense, because a signing statement merely expresses the directive wishes of the president—he’s defending his territory, essentially.

Christopher DeMuth, a senior fellow at the American Enterprise Institute, agreed. “Obviously from the circumstances of the case it is about more than a Bush signing statement—Obama must agree with the policy,” he said. It is also DeMuth’s opinion that the president’s constitutional responsibilities involving foreign affairs would likely place this within his purview.

McGinnis stressed that the court will not actually be ruling on the issue of Jerusalem, only on who gets to make that decision.

“It just so happens that it’s also on this rather explosive issue of Jerusalem and Israel,” McGinnis said. But McGinnis acknowledged that if the statute is ruled unconstitutional, that would apply to the law ordering the American embassy to be moved from Tel Aviv to Jerusalem as well. That’s why, he said, “I think people who are eager for congressional power would like this to come up in some other context.”

Hadley Arkes, professor of law and American institutions at Amherst College, wrote in an email that, for those who would want Congress to make the determination, “the problem is that the recognition of foreign governments goes hand in hand with military strategy (recall the decision on whether to recognize the government of [Admiral Jean-Francois] Darlan in North Africa before the North African landings in World War II).  And the judges understood at the time that there was no way an unelected judge could get in the way here, taking control of the situation from an elected President and the political branches.  What is involved here is a principle that runs deep in the American regime—perhaps the deepest principle, running back to the revolution:  that the security of the American people cannot be put into the hands of officials, whether in the Parliament in Westminster, or unelected judges, who bear no direct responsibility to the lives that are at stake.”

If it is ruled a political question, Arkes said, Congress would, as McGinnis indicated, fight it out with the executive branch. And the powers at the disposal of Congress to do so should not be underestimated.

“Congress has levers far more powerful than those available to the courts in enforcing judgments,” he said. “We need only recall the way that Congress withdrew support for the Administration in Cambodia and Vietnam in 1975 and hastened the collapse of the American effort in Indochina.  Those powers are no less formidable today.”

But there is certainly a question as to whether there is the will on the part of Congress to attempt to force the president’s hand. If not, then even if the court rules that the two branches must fight it out, the unlikelihood of Menachem getting “Israel” put on the passport persists. If the court rules the statute itself to be unconstitutional, Menachem will lose definitively and the case will set precedent on the issue.

Seth Mandel is a writer specializing in Middle Eastern politics and a Shillman Journalism Fellow at the Horowitz Freedom Center.