The President’s Lowest Ebb
http://www.nysun.com/editorials/the-presidents-lowest-ebb/89186/
The Supreme Court ruling in the so-called Jerusalem passport case certainly hands a disappointing bar mitzvah gift to Menachem Binyamin Zivotofsky. He is the American who was born at Jerusalem in 2002 and sought American papers listing his birthplace as Israel. He acted under a law passed almost unanimously by Congress requiring that such papers be granted. It took two trips to the Supreme Court for the judicial branch to reach a conclusion, and the youngster lost.
To the young man — and his heroic parents — all Americans who love Israel owe a debt of thanks. We were rooting for them all the way. But it may yet be that in the long run the big winner in the case will be Jewish state. For one result of Zivotofsky v. Kerry, as the case came to be called, will be that those Americans born in Jerusalem who want documents listing their birthplace as Israel will have to become Israelis. That is, in a way, a restatement of the raison d’etre of Zionism.
No less a figure than Menachem Begin warned against trying to answer the Jerusalem question on Capitol Hill. The fact is that the only duly constituted authority to decide the Jerusalem question is Israel. It has been sovereign in the part of Jerusalem where Master Zivotofsky was born since 1948 and in the rest of Jerusalem since 1967. It is up to the world to adjust. Nothing in the opinion of the Supreme Court changes that, a point that will grow ever more clear.
What the court decided, after all, was but the constitutional question of which branch of the government holds the recognition power. The vote for the president was five and a half to three and a half, in that Justice Thomas concurred only on the passport but would have let the congress lay down the law on consular consequences, resulting in some papers, if not a passport, saying that Zivotofsky was born at Israel. There were magnificent dissents by the Chief Justice, Justice Alito and The Great Scalia.
Justice Scalia noted that before our country declared its independence, the law of England “entrusted the King with the exclusive care of his kingdom’s foreign affairs.” George III’s prerogative’s, he noted, included the sole power of sending and receiving ambassadors, making treaties and making war and peace. How deftly Justice Scalia marked the American revolutionary fact that the “People of the United States had other ideas.” They adopted, he noted, a Constitution that separates and divides the powers.
He quotes no less a sage than Lawrence Tribe as noting that 11 of the powers granted to Congress deal with foreign affairs. The Justice, however, accepts the argument of Master Ziotofsky’s constitutional counsel, Nathan Lewin, who argued throughout the case that it wasn’t really about recognition of sovereignty over Jerusalem but merely about the ability of the Congress to honor the request of an American citizen for consular papers. In acceding to that request, Congress would have disturbed nothing.
The Chief Justice concurred in all that Justice Scalia wrote, but added an ominous point. “Today’s decision is a first,” he wrote. “Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” On the contrary, he noted, what the court has instead stressed is that “the President’s power reaches ‘its lowest ebb’ when he contravenes the express will of Congress, ‘for what is at stake is the equilibrium established by our constitutional system.’”
The “lowest ebb” is the best that President Obama can get out of this case. Not that he’s alone. It is a shocking fact that President George W. Bush also defied Congress on this head. But if the lowest ebb of the presidential power was marked on a bipartisan basis, so was the high-water mark of congressional courage. The law that Master Zivotofsky tried to assert was passed by a unanimous senate that included two state secretaries — Mrs. Clinton and Mr. Kerry — who would refuse to carry out the law.
Welcome to Washington. It’s a moment to remember that the Americans who handed up the Congress that passed this law are not without recourse. This is a point that was made by Mr. Lewin in a statement after the court ruled. He suggested that the time has come for candidates for the presidency to promise not only to move the American embassy to Jerusalem but to acknowledge that it is in the country of which it is the capital. Given that we have an election getting underway, Master Zivotofsky’s bar mitzvah may mark a coming of age for all Americans.
Comments are closed.
