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From a Jerusalem Boy’s Passport to a President’s Powers

When new parents Naomi and Ari Zivotofsky decided to file suit against the State Department, they were convinced they were acting to strengthen Jewish claims to Jerusalem. Instead, the Supreme Court, in ruling decisively against them on June 8, has revealed that this suit is one that supporters of Israel will likely regret for years to come, providing more power to a president many of them don’t trust.

The case, Zivotofsky v Kerry, has its origins in a long-standing tension between official foreign policy and national political consensus. For decades, presidents have insisted that the national identity of Jerusalem is a “final status” issue, to be resolved through negotiations between Israelis and Palestinians. Yet at the same time, an overwhelming national consensus rejects the State Department’s stance as a spineless diplomatic fiction. For most Americans, it is simply a fact that West Jerusalem (and likely swaths of East Jerusalem as well) are already the capital of the Jewish state. In 2002, Congress decided to enshrine this consensus in law, passing legislation directing the State Department to, “upon the request of the citizen or the citizen’s legal guardians, record the place of birth as Israel.”

The law represented a direct challenge to that State Department, which had adopted the unusual practice of recording the “place of birth” for those born in Jerusalem simply as “Jerusalem” (rather than “Israel”). So even as President George W. Bush signed the congressional order into law, he issued a “signing statement” arguing that the passport directive was unconstitutional. Only the executive branch, Bush insisted, had the right to “recognize” other states and determine over what territory they had sovereignty. Congress could not mandate that the State Department issue passports that would be at odds with its own recognition policy. This would undermine presidential prerogative. Both Bush and President Obama after him have refused to comply with Congress’s directive ever since.

A few weeks after the law’s passage, Menachem Zivotofsky was born in Jerusalem. And when local consulate officials refused to record “Israel” on the infant’s passport, the boy’s parents filed suit.

Although the case centers on Jerusalem, the legal arguments are more fundamental. In court, the Zivotofskys argued that Bush and Obama had overstated their power. The president’s authority over foreign policy is not exclusive; it’s shared with Congress. True, the Constitution gives the president the right to “make treaties” and “receive Ambassadors,” but treaties require the consent of the Senate, and only Congress can “regulate commerce with foreign nations” or declare war. At the very least, passports — which Congress authorized the president to issue in 1856, and which it has regulated ever since — would seem a reasonable outlet for Congress to make a mark in the sphere of foreign affairs.

The court has now rejected these arguments. Writing for the majority, Justice Anthony Kennedy concluded that the president holds the “exclusive power of recognition” and that “Congress cannot require him to contradict his own statement regarding a determination of formal recognition.” Allowing Jerusalemites to insist that consulates record “Israel” on their passports would, according to Kennedy, create a contradiction between the president’s expressed policy and “his agent’s statements.”

At first glance, the decision seems reasonable and limited. Throughout his opinion, Kennedy insists his decision is a narrow one: Congress retains power in foreign policy, he stresses, just not in the specific area of “recognition.” Furthermore, Congress retains plenty of tools with which to complicate the president’s foreign policy: It can enact an embargo, deny appropriations, decline to confirm an ambassador or even declare war.

But the decision’s expansive logic belies its modest language. Kennedy stressed that the nature of “recognition” is such that the country simply must speak with “one voice.” That might seem like a plausible argument, but it is also exceedingly dangerous — especially as he offers no limiting principle to explain why the same exact logic would not apply to the entire field of foreign relations.

Taken seriously, the opinion is a recipe for vastly expanded presidential power. Of course, in this age of congressional gridlock, we are used to a certain amount of growth in presidential power. Indeed, it’s traditional and sensible for the president to enjoy wide latitude in setting priorities when specific congressional instruction is absent. And so Obama has pursued military action in Libya and Syria, set controversial priorities on immigration and seems set to unilaterally suspend sanctions on Iran — all while challenging Congress to pass legislation to constrain him if it really disagrees.

After Zivotofsky, that challenge is unnecessary, because even if Congress does try and constrain him, the president will feel free to ignore it. For those of us sympathetic to Obama’s priorities, this may not sound so bad in the short term. But we would do well to imagine a President Jeb Bush, or a President Ted Cruz, given the same latitude.

Perhaps most ironically for the Zivotofskys, the decision is a serious blow to pro-Israel interests. Groups like the American Israel Public Affairs Committee have long relied on exceptionally strong and consistent relationships in Congress to compensate for the occasional friction with a presidential administration. Underlying that strategy was the assumption that Congress still enjoys a substantial say in matters of foreign policy. After the court’s ruling, that strategy appears far weaker. And in a world where state after state recognizes Palestine, the court’s full-throated endorsement of exclusive presidential recognition power will only grow more unsettling.

Yishai Schwartz is an Associate Editor at Lawfare. Previously he was a reporter-researcher at The New Republic.


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