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.