U.S. Supreme Court Decision: Small Step for Presidency, Big Blow for Jerusalem

The massive effort to use Zivotofsky's passport petition for recognition of Israel’s capital only made things worse.

Chemi Shalev
Chemi Shalev
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Menachem Zivotofsky, center, stands with his father Ari Zivotofsky, right, and their attorney Alyza Lewin, outside the Supreme Court in Washington, November 3, 2014.
Menachem Zivotofsky, center, stands with his father Ari Zivotofsky, right, and their attorney Alyza Lewin, outside the Supreme Court in Washington, November 3, 2014.Credit: AP
Chemi Shalev
Chemi Shalev

The U.S. Constitution gave the president the authority “to receive ambassadors and other public ministers.” Ever since the Founding Fathers first thrashed it out in 1793 over George Washington’s wish to muzzle an irksome envoy of revolutionary France, the so-called “reception clause” has been interpreted as giving the President wide powers in making foreign policy. Monday’s Supreme Court decision further cemented his (or her) exclusive authority over recognition of foreign countries and their sovereignty over geographical areas, or, in this case, lack thereof.

By a 6-3 majority, the Court decided, that this presidential prerogative encompasses American-issued passports and their contents. Therefore, the judges noted, a clause in a 2002 Congressional bill that sought to compel the administration to allow Jerusalem-born Americans to have “Israel” registered in their passports as their country of birth was unconstitutional. The court rejected the petition brought by Menachem Zivotofsky, born shortly after the law was enacted, ruling that his passport would continue to list a country-less Jerusalem as his place of birth.

The decision had nothing to do with the specific legal status of Jerusalem or with the consistent refusal of successive U.S. administrations – from Harry Truman through Ronald Reagan and George Bush all the way to Barack Obama – to recognize Israeli sovereignty over the city. Rather, the judges dealt with the eternal dilemmas of the American constitutional regime, including separation of powers and the conduct of foreign affairs: Where the constitution doesn’t grant it a foothold, the judges ruled, Congress cannot barge in.

It was not a victory for Barack Obama, but for the office of the presidency, and a limited one at that: The Court did not rule, as administration lawyers had suggested, that the president has exclusive control of the country’s entire foreign policy. Thus, for example, the decision has little legal bearing on the upcoming battle over the Iran nuclear deal: First, because the Constitution gives Congress considerable say about foreign treaties and second, because that issue was dealt with in the Iran Nuclear Agreement Review Act legislated last month.

Legalities and technicalities aside, however, the decision was nonetheless a considerable public relations blow for Israel and for perceptions of its status in Jerusalem. Together with myriad Jewish organizations fighting for the cause, Israel had sought to exploit Zivotofsky’s understandable request to have his country of birth registered in his passport, conducting a legal battle that lasted over a decade, consumed millions of dollars, raised hopes sky high and ended in a thundering crash. The world’s media are bound to dwell less on the debates between Thomas Jefferson and Alexander Hamilton over the conduct of America’s foreign policy and more on the ruling’s bottom line. If you hadn’t known until now that Israel’s greatest ally refuses to recognize its sovereignty over its capital in either East or West Jerusalem, you’re certainly aware of it now.

Israel and the Jewish groups who turned the Zivotofsky case into a cause celebre turned out to be too clever by half. They thought that by combining strong Congressional support, persuasive amicus briefs submitted by well-respected Jewish groups and a personal story bound to spark sympathy they might circumvent long standing U.S. policy and get in through the back door. A clear majority of the judges – including all the liberal ones, whose positions may have been colored, for all we know, by their attitude towards current Israeli policies – decided to slam the door on their toes.

Most observers believe that Israel has already lost the battle over a nuclear agreement with Iran as well, if and when one is signed – it just doesn’t know it yet, or at least is unwilling to concede. It’s been a recurring theme in recent years, especially in the government’s ties with America: Why try to cut your losses when you can emerge from the fight not only bloodied and beaten, but tarred and feathered as well?

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