Jerusalem in the U.S. Supreme Court

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Menachem Binyamin Zivotofsky will not have “Israel” listed as his place of birth on his U.S. passport, ruled the U.S. Supreme Court on June 8, 2015. (Zivotofsky v. Kerry, No. 13-628) He was born in Jerusalem in 2002 to American parents who made the request that Israel be officially listed on their son’s passport, but the U.S. Embassy refused and listed Menachem’s place of birth as Jerusalem because it’s been a long-standing policy of our government not to recognize any country’s sovereignty over Jerusalem.

Justice Kennedy — author of the 6-3 opinion — noted:

Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues in current international affairs. In 1948, President Truman formally recognized Israel in a signed statement of “recognition.” See Statement by the President Announcing Recognition of the State of Israel, Public Papers of the Presidents, May 14, 1948, p. 258 (1964). That statement did not recognize Israeli sovereignty over Jerusalem. Over the last 60 years, various actors have sought to assert full or partial sovereignty over the city, including Israel, Jordan, and the Palestinians. Yet, in contrast to a consistent policy of formal recognition of Israel, neither President Truman nor any later United States President has issued an official statement or declaration acknowledging any country’s sovereignty over Jerusalem. Instead, the Executive Branch has maintained that “‘the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.’” United Nations Gen. Assembly Official Records, 5th Emergency Sess., 1554th Plenary Meetings, United Nations Doc. No. 1 A⁄PV.1554, p. 10 (July 14, 1967); see, e.g., Remarks by President Obama in Address to the United Nations Gen. Assembly (Sept. 21, 2011), 2011 Daily Comp. of Pres. Doc. No. 00661, p. 4 (“Ultimately, it is the Israelis and the Palestinians, not us, who must reach agreement on the issues that divide them,” including “Jerusalem”).

Congress tried to force the issue by passing Section 214, titled “United States Policy with Respect to Jerusalem as the Capital of Israel,” which required the Secretary of State to heed the wishes of families who requested their children’s place of birth be listed as Israel, rather than Jerusalem, on their passports. President George W. Bush signed the law but warned that if it was more than just advisory, it would impermissibly interfere with the President’s constitutional authority regarding recognition of foreign states.

The law has never been enforced.

Then in stepped the Zivotofsky family who challenged the U.S. Embassy’s decision, while holding up Section 214 in their defense. Their arguments failed in the lower courts but that didn’t dissuade them.

Finally Justice Kennedy put the issue to rest. The court ruled Section 214 is unconstitutional. The decision is worth reading, available here.

Kennedy made it clear that the court was addressing only 2 questions and the Justices had no business interfering in foreign affairs.

First, the court decided that the President has the exclusive power to grant formal recognition to a foreign sovereign; and second, Congress couldn’t command the President and his Secretary to contradict the earlier recognition.

Before reaching the question of [Section 214’s] constitutionality, the Court for the first time in history ruled that the president has the exclusive power to decide what other foreign nations the United States will formally recognize for nation-to-nation dealings, and that Congress may not force the president to make a different choice about that. In fact, most of Justice Kennedy’s thirty-page opinion was devoted to that core question about the Constitution’s distribution of foreign policy powers.

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Naturally, the Palestinians are pleased with the decision, and the Mayor of Jerusalem …. not so much.

I’m left wondering if Zivotofsky v. Kerry opens the door on another related issue.  In November, Sweden became the 135th member of the United Nations to recognize the State of Palestine.  It’s about time the United States joined the community of nations.

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