Dershowitz spills the beans: Supreme Court’s Jerusalem case impact on Iran deal

US Politics
on 26 Comments

Alan Dershowitz has been giving a few interviews this week lambasting Mondays’ Supreme Court decision overturning an unconstitutional 2002 law on Jerusalem. Predictably, he doesn’t like it. According to Dershowitz, the ruling is not only “silly” and “utterly unnecessary“–it’s also “dangerous to the world”.

Why? because Dershowitz thinks it gives too much power to the President over Congress regarding the Iran deal. He’s wrong but it’s interesting for what it revealed about the intentions of the parties pushing the case.

During an interview broadcast last night on an Israeli TV station he spilled the beans. The rightwing site Blaze got the quotes.

“To the extent that the president is emboldened by this decision to say: ‘I’m the one who makes foreign policy for the United States, not Congress,’ it can have terrible implications for world peace,” Dershowitz told Israel’s Channel 1 news in an interview broadcast Saturday night, characterizing the decision as “terrible.”

Dershowitz said he believes the ruling was “dangerous to the world, because it gives the president of the United States sole authority to make a bad deal with Iran” over its nuclear program.

“The case should never have been brought, because it gave the Supreme Court an opportunity to make some very bad law that will affect Iran… Now, whether or not Jerusalem is recognized officially by the State Department or by the president as the capital of Israel has importance and significance, but that significance pales by comparison with the importance of Congress having a role in not allowing the President of the United States to make a bad deal with Iran about nuclear weapons.”

As I wrote earlier this week, this case was never about a little boy, or even a little boy having the right to put the word Israel on his passport in defiance of the State Department, because Congress had passed a law allowing him to do so. It was always about placing power with Congress over the President on foreign policy, because the Congress is where the lobby exercises the greatest power.

While the decision represented huge support for the government’s Jerusalem policy, the ruling didn’t go any further than that, though the 6-3 majority, which included Clarence Thomas, could have. The Supreme Court didn’t rule on the foreign policy, per se, they skipped over it.  Here’s Amy Howe’s Scotus blog, explaining the ruling in plain English:

Even if the president and the executive branch won this round, though, it was not the broader constitutional triumph they might have hoped for. The federal government had asked the Court to rule that the executive branch has extensive foreign relations powers, including the “exclusive authority to conduct diplomatic relations.” But the Court declined to do so, on the ground that it didn’t need to answer that question to resolve this specific case. And the Court also made clear that Congress still has a substantial role to play in foreign affairs: even if the president has the exclusive power to recognize foreign countries, it cautioned, Congress can “express its disagreement with the President in myriad ways. For example, it may enact an embargo, decline to confirm an ambassador, or even declare war.” These caveats could come into play soon, in the wake of President Barack Obama’s announcement late last year that he intends to normalize relations with Cuba: shortly after the president’s pronouncement, Senator Marco Rubio of Florida declared that he would block the confirmation of an ambassador and funding for a proposed U.S. embassy in Havana.

While the case may have given the Supreme Court “an opportunity to make some very bad law that will affect Iran”, as Dershowitz asserts, it didn’t take that opportunity, now did they?

So why’s Dershowitz whining about Iran? Balance of power, that’s why. A perceived loss in the coveted ability of Congress to twist the president’s arm.

And for more moans, groans and pleads from the lobb,y get a load of this; members and chairman of the Congressional Israel Allies Caucus are calling on Obama to– ignore the court’s decision after a 13 year long battle– and officially recognize Jerusalem as Israel’s capital. Crazy.

About Annie Robbins

Annie Robbins is Editor at Large for Mondoweiss, a mother, a human rights activist and a ceramic artist. She lives in the SF bay area. Follow her on Twitter @anniefofani

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26 Responses

  1. John Salisbury
    June 14, 2015, 5:31 pm

    From memory it was a condition of Adelson’s support in 2012 that Romney et al recognise Jerusalem as Israel’s capital and move the Embassy there.

  2. JWalters
    June 14, 2015, 5:52 pm

    Annie, thanks for the astute reporting and analysis of this case.

  3. John Douglas
    June 14, 2015, 7:33 pm

    My first reaction to the ruling was, “I very much like the result but I wish it could have been settled with language that did not strengthen the hand of the president.” It was the first time SCOTUS has judged the president to have the “exclusive” power to recognize governments. Since the time of Gingrich the Congress has been a disaster. But presidents have been only a little better, except for GW who was worse than congress. Obama has extended his powers (sometimes for the good, mostly not) way beyond most prior presidents. Granting any an part of government an excusive power is looking for trouble.

    • Annie Robbins
      June 14, 2015, 11:30 pm

      It was the first time SCOTUS has judged the president to have the “exclusive” power to recognize governments.

      not sure about that, did you read the ruling? from the Syllabus :http://www.haaretz.co.il/st/inter/Hheb/images/RULING.pdf

      (b) The Constitution’s text and structure grant the President the power to recognize foreign nations and governments. The Reception Clause directs that the President “shall receive Ambassadors and other public Ministers,” Art. II, §3. And at the time of the founding, receiving an ambassador was considered tantamount to recognizing the sending state’s sovereignty. It is thus logical and proper to infer that the Reception Clause would be understood to acknowledge the President’s power to recognize other nations. This inference is further supported by the President’s additional Article II powers: to negotiate treaties and to nominate the Nation’s ambassadors and dispatch other diplomatic agents. Though ratifying a treaty and confirming an ambassador require congressional approval, Congress lacks authority to initiate the actions without the President’s involvement. The President, unlike Congress, also has the power to open diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers. The Constitution thus assigns the President, not Congress, means to effect recognition on his own initiative.

      Functional considerations also suggest that the President’s recognition power is exclusive. The Nation must “speak . . . with one voice” regarding which governments are legitimate in the eyes of the United States and which are not, American Insurance Assn. v. Garamendi, 539 U. S. 396, 424, and only the Executive has the characteristic of unity at all times. Unlike Congress, the President is also capable of engaging in the delicate and often secret diplomatic contacts that may lead to a recognition decision, see, e.g., United States v. Pink, 315 U. S. 203, 229, and is better positioned to take the decisive, unequivocal action necessary to recognize other states at international law. The President has also exercised unilateral recognition power since the founding, a practice endorsed by this Court, see, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 410.

  4. Whizdom
    June 14, 2015, 7:45 pm

    “The case should never have been brought,”

    Dersh is right on this one point. Strategically stupid.

    Does anyone doubt if the case were a very Pro Settlement President, and a two state leaning congress, who Dersh would argue for?

  5. Kay24
    June 14, 2015, 10:20 pm

    Interesting article Annie. Dirty Dersh seems annoyed that the SC made sure the President has control over recognizing Jerusalem or not, but he seems quite okay with Israel controlling the US, and even writes our foreign policies.

    • Annie Robbins
      June 15, 2015, 12:02 am

      i thought the case was disingenuous in it’s supposed intent. and dersh’s interview from the first link in the article shows why:

      The supreme court decision was utterly unnecessary — the court simply could have ruled that this case does not recognize Jerusalem as the capitol of Israel, it simply involved a basic factual question, ‘is West Jerusalem part of Israel? Is a person born in West Jerusalem an Israeli? That’s a factual question. The answer to that is clearly yes, anybody born in West jerusalem the way this man was is an Israeli. The passport is lying if it doesn’t allow him to tell the truth about where he was born…. he was born in a country called Israel, everybody knows that…. so it was a silly decision which elevates a kind of diplomatic fiction over reality, it was an overreaching by the supreme court. It was an utterly unnecessary provocation to Israel.

      overreaching by the supreme court? there’s a very big difference between “‘is West Jerusalem part of Israel?” and ” Is a person born in West Jerusalem an Israeli?” and those are definitely NOT “a basic factual question”, they are in fact 2 different questions. and the answer to former is NOT “clearly yes” (at all), according to US state policy, it’s either no or undetermined. and according to international law jerusalem was unilaterally annexed so it’s (clearly) no.

      the place on the passport they requested state “israel” had nothing to do with ” Is a person born in West Jerusalem an Israeli? ” it addresses the identity of a PLACE, not a person’s identity. and how can one claim “the court simply could have ruled that this case does not recognize Jerusalem as the capitol of Israel” knowing the legislation in question stated 4 times jerusalem was the capitol of israel or jerusalem was inside israel. the suit demanded the US recognize and identify jerusalem was inside israel knowing only congress afforded that recognition (unconstitutionally as it turns out), not the state department and consistently not the executive branch.

      so if the court upheld the legislation of the US recognizing jerusalem inside israel then it would make no difference whether the court addressed the capitol issue at all because it would de facto recognize israeli sovereignty over jerusalem and therefore defacto recognize israel’s designation of jerusalem as the capitol. so it’s a farce. and he knows this. he also knows it would defacto allow the congress to solely recognize a foreign countries sovereignty against the wishes of the executive branch, which would have been an historical anomaly ushering in an unconstitutional imbalance of power between congress and the executive branch facilitated by the judicial branch.

      the court recognized the intent of the case all along. and dersh recognized it too which is why he said the issue of jerusalem “pales in comparison with the importance of Congress having a role in … a .. deal with Iran” .

      of course i am just speculating (on hunch) since i don’t know the law. ;) didn’t studied it or anything.

  6. ckg
    June 14, 2015, 10:54 pm

    These days Dershowitz gets so many approving quotes in The Blaze that one would think Glenn Beck was an Epstein client too.

    • Citizen
      June 15, 2015, 7:39 am

      How’s the Dersh case involving Epstein doing these days? Is Epstein in jail?

      • a blah chick
        June 15, 2015, 9:40 am

        No arrests yet in this case. I think we are in that lull that happens whenever a big story like this site. First there are the spectacular headlines and then things usually settle down while the respective sides maneuver for legal positions. I found no indication on the inter tubes that the two lawyers who launched this case have withdrawn their suit.

        I did find this Mediate.com story from May 17th.

        “An email obtained by Mediaite indicates an effort to solicit funds for Alan Dershowitz’s defense in a defamation case, aiming to “defray the enormous expenses which have been thrust on him so unjustly.”

        “Alan has been championing our issues for 50 years,” reads an email by fellow attorney Alan C. Rothfeld, Dershowitz’s former student. “Now it’s our turn to support him.”

        The email details Dershowitz’s legal entanglements since he was named in a lawsuit filed by Jane Doe #3, which alleged plutocrat Jeffrey Epstein kept her as an underage sex slave. The suit was not filed against Dershowitz, but included him as one of the men who engaged in sexual activities with the plaintiff at Epstein’s direction.”

    • RockyMissouri
      June 15, 2015, 10:38 am

      It’s the level of desperation to be in that unreliable ‘news’ site…..

  7. WH
    June 15, 2015, 2:30 am

    It’s unfortunate that the abuse case against him seems to have fizzled out. Not to be prejudicial, but the evidence looked pretty damning.

  8. hophmi
    June 15, 2015, 8:09 am

    “He’s wrong but it’s interesting for what it revealed about the intentions of the parties pushing the case.”

    I love it how, when it serves your purpose, you believe everything Dershowitz says.

    • Annie Robbins
      June 15, 2015, 10:50 am

      i don’t believe everything he says.

    • Rob Roy
      June 15, 2015, 8:00 pm

      hophmi,
      I don’t believe anythng he says. He is one of the most deceitful and illogical people I’ve ever read or heard speak. Why do people fawn over him. Oh, yes, he says Israel can do no wrong.

    • eGuard
      June 16, 2015, 1:11 pm

      honpie: you believe everything Dershowitz says you state while you quote annie opening with: “He’s wrong, …”.

  9. thedirtydemocrat
    June 15, 2015, 8:38 am

    Annie dear, where the hell did you get that no class picture of Dangerous Dersh? Not exactly makes him a fashion plate.
    The bad spot in our (US) policy with Israel are the worst of the worst. Who ever drew up this toxic relationship should have been aborted and agreement should never have seen the light of day. America’s prestige takes a hit every time Zionist, racist Israel does more murdering of Palestinians in Gaza. One friend of mine said it pretty well, “Like shooting fish in a barrel, but these are not fishes, they are human beings with rights!”

  10. eusebio
    June 15, 2015, 9:25 am

    A fair and open process both people deserve self determination and sovereignty diplomacy of peace Palestine and Israel

  11. RockyMissouri
    June 15, 2015, 10:18 am

    If Dershowitz is unhappy, that’s a good sign, as far as I’m concerned.

  12. sawah
    June 15, 2015, 12:55 pm

    Annie,
    You never fail to add so much spice to MW
    thanks for this newest article and your previous ones, of course

  13. Doubtom
    June 16, 2015, 12:36 am

    Anyone know who dresses Dershoshitz?

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