While everyone’s focused on election day another big story is going on at the Supreme Court. Oral arguments over Zivotofsky v. Kerry began yesterday, in a case that could potentially decide U.S. policy over the sovereignty of Jerusalem, the West Bank as well as the entirety of Occupied Palestine. Under a deceptive guise, ostensibly “created to give individuals the right to self-identify,” the case brought before the court, pushed by stalwarts of the Israel lobby, including but not limited to the Zionist Organization of America, American Jewish Committee, the Anti Defamation League, and the Louis D. Brandeis Center, seeks a ruling that essentially grants Congress the authority to bypass the executive branch on Jerusalem, thereby stripping the president of the power to conduct foreign affairs. And yes, in Congress, the lobby rules.
Here’s background on Zivotofsky v. Kerry from Scotus blog’s editor-reporter Amy Howe (link):
Since 1948, the United States has declined to recognize any country as having sovereignty over the holy city of Jerusalem. But in 2002, Congress passed a law that instructed the Secretary of State, upon request, to list the birthplace of a U.S. citizen born in Jerusalem as “Israel” on his passport. President George W. Bush signed the law, but at the same time he issued a statement – known as a “signing statement” – in which he protested that the law “interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the . . . executive branch.”
The child at the heart of today’s case, Menachem Zivotofsky, was born in Jerusalem in 2002 to U.S.-citizen parents. When his parents applied for a passport for him, they asked – consistent with the then-new law — to have his place of birth be designated as “Israel” on his passport. When the State Department refused, the family brought this lawsuit, which has already been to the Supreme Court once before. Two years ago, the Justices decided that the lawsuit could continue; it was not, they concluded, the kind of “political question” that courts should leave to the president and Congress.
The case went back to the lower court, which ruled in the government’s favor. It agreed with the government that only the president has the power to recognize foreign countries. And the law ran afoul of that power, it concluded, because it tried to change the government’s long-standing policy of not recognizing any country as having sovereignty over Jerusalem.
Described as both “a proxy war for U.S. foreign policy toward Israel“, a “foreign policy minefield,” and “a massive smack down between the congressional and executive branches” the implications of the Supreme Court ruling could have lasting repercussions not just to US politics, our national interest, and separation of powers, but damage to the Middle East could be devastating.
Obama’s Solicitor General, Don Verrilli, argued the status of Jerusalem is “the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades” and suggested US credibility could hinge on the outcome:
[T]he fact of the matter is that the parties in the region, the nations in the region, and frankly people around the world and governments around the world scrutinize every word that comes out of the United States Government and every action that the United States Government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution.
Zivotofsky’s lawyer, Alyza Lewin, said these claims are a “non issue.”
Supreme Court Justice Elena Kagan cut to the heart of the matter:
JUSTICE KAGAN: I take it, Ms. Lewin, when you say the West Bank, I take it you think that Congress could pass the identical statute with respect to a child born in Hebron, say.
MS. LEWIN: Saying that –
JUSTICE KAGAN: That that, too, is Israel?
MS. LEWIN: Correct.
JUSTICE KAGAN: Yes. Okay.
Hebron? Today Jerusalem, tomorrow the West Bank.
From the onset the Justice’s views were sharply split with Chief Justice Roberts along with Alito and Scalia appearing to back Congress. Justice Scalia noted that the State Department can decide who to recognize and be friendly with and Congress can do the same “and the fact that the State Department doesn’t like the fact that it makes the Palestinians angry is irrelevant”.
Lewin said the president’s authority to enter into executive agreements to resolve foreign claims was neither explicit nor exclusive nor could agreements entered into by the executive branch “contradict or run counter to the express will of Congress.” So laws passed by Congress “trump the president”. She also characterized the Solicitor General as having “greatly exaggerated” the potential negative consequences. Slate’s Dahlia Lithwick captures the moment:
Lewin closes by saying that the negative international consequences Verrilli warned of are “grossly exaggerated.” Kagan’s jaw literally drops. “Can I say,” Kagan stops her, “that this seems a particularly unfortunate week to be making this kind of ‘oh, it’s no big deal’ argument. I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn’t it?”
You can read yesterday’s oral arguments in their entirety at SupremeCourt.gov (PDF)
To be sure, we’ll be following up on the outcome.