As you know by now, the Supreme Court today ruled 6-3 that the Obama administration was right to insist that a passport for a boy born in Jerusalem in 2001 not state, “Jerusalem, Israel,” as the boy wished– and as Congress also wanted. Nope. The president makes foreign policy, and the Congress overstepped in a 2002 law allowing citizens born in Jerusalem to list their place of birth as “Israel.”
The case is having huge reverberations, reflecting the fact that it was a power struggle over foreign-policy making; and the decision puts the Supreme Court on the president’s side on a crucial question. We’re seeing a lot of anger from Israel supporters. This case was never about some little boy’s desire to have Israel on his passport, it was about the Israel lobby’s effort to use the Congress and the court to make foreign policy.
Well, the Supreme Court slam-dunked the lobby. “A blow to the pro-Israel lobby,” Robert Siegel just said on National Public Radio.
Here’s Anthony Kennedy’s ruling, up at Haaretz. Eloquent. He notes that even when Truman recognized Israel in 1948, he didn’t 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.’
The president has autonomy here. If the little boy is so upset, he can pick the city’s name, but not the country:
If a citizen objects to the country listed as sovereign by the State Department, he or she may list the city or town of birth rather than the country. The FAM [Foreign Affairs Manual], however, does not allow citizens to list a sovereign that conflicts with Executive Branch policy. Because the United States does not recognize any country as having sovereignty over Jerusalem, the FAM instructs employees to record the place of birth for citizens born there as “Jerusalem.”
Politics have to stop at the water’s edge, Kennedy said:
the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These assurances cannot be equivocal.
Recognition is a topic on which the Nation must “‘speak . . . with one voice.’”
And Kennedy said that the tradition of politics stopping at the water’s edge was respected by Congress, even during the Taiwan-China policy battles. Right; as always, Israel is a special case.
Over the last 100 years, there has been scarcely any debate over the President’s power to recognize foreign states. In this respect the Legislature, in the narrow context of recognition, on balance has acknowledged the importance of speaking “with one voice.”
Kennedy says that Jerusalem is a sensitive question, and affirms the U.S. policy here.
As a matter of United States policy, neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem.
Antonin Scalia in his dissent writes that “The Jerusalem passport law has nothing to do with recognition,” but Scalia’s stance is undermined by the angry reactions to the Supreme Court decision from Israel supporters. For them, it was never merely about a parent’s “right” to list Israel on their child’s passport if the child was born in Jerusalem, it was about forcing the hand of the executive branch to officially recognize Jerusalem as the capital of Israel.
Marco Rubio hopped right on it and indicated that if/when he’s president, this won’t happen:
The administration’s policy makes no sense. They somehow maintain that all of Jerusalem is disputed territory.
Individuals born in Jerusalem should be listed in U.S. passports as having been born in Israel if they or their families so desire, and I hope this administration and future ones will change the policy, while also working to move the U.S. embassy in Israel to Jerusalem, which is and will always remain Israel’s capital.”
Knesset member Michael Oren, formerly Netanyahu’s ambassador, is also not happy. He says it damages Israel’s alleged sovereignty over Jerusalem:
The ruling by the US Supreme Court today, negating the right of Americans born in Jerusalem to denote Israel as their official place of birth, is damaging to Israel’s sovereignty and to the alliance of Israel and the United States.
The mayor of Jerusalem is also steamed, and spouts nationalist ideology:
Jerusalem Mayor Nir Barkat responded to the ruling, saying that “much like Washington D.C. is the capital of the U.S., and London is the capital of the U.K., and Paris the capital of France – thus Jerusalem is and always will be the capital of Israel.”
Barkat said that “in days like these, when anti-Semites are trying to raise their heads and the BDS – which supports Hamas’ positions – endangers world peace and denies Israel’s right to exist, we expect the U.S. to strengthen Israel and recognize Jerusalem as its capital.
Haaretz acknowledges that this case was always about the recognition of Jerusalem as Israel’s capital, not about some little boy’s right to have his birthplace acknowledged.
Nabil Abu Rdaineh, spokesman for Palestinian President Mahmoud Abbas, told Reuters: “This is an important decision which accords with international resolutions and the resolutions of the U.N. Security Council and General Assembly. This is a clear message that Israel occupies East Jerusalem as well as the West Bank and Gaza Strip.”
“A very very wrong decision,” says Rep. Eliot Engel of NY, on National Public Radio.
In Commentary, Jonathan Tobin is also incensed. He says the case is more evidence that Obama is ignoring “the cold hard reality of Palestinian rejectionism, Islamist terror, or Iran’s ambitions for regional hegemony.” Obama is living a fantasy, says Tobin.
Obama is entitled to pretend that the city of Jerusalem isn’t the capital of Israel or even part of the Jewish state. This triumph may cause celebration in the White House as well as among Israel’s foes. But it should also be put down as yet another win for fantasy over reality as well as one that won’t further the cause of peace.
Obama, more than any other president since 1967 has encouraged this delusion by treating these Jewish neighborhoods as being as offensive to him, and the Jews who live there as just as liable to be thrown out of their homes as the most remote West Bank settlement.
This was a hard won fight. Remember, Annie Robbins nailed this last November, high stakes for the Israel lobby:
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.
But not in the Supremes.
On NPR, Nina Totenberg noted that the majority included the Supreme Court’s three Jews.
And in his dissent, Justice Roberts noted that the 2012 Democratic platform contradicted the executive’s position, recognizing Jerusalem as Israel’s capital. Right. The lobby pushed for that and Obama didn’t want to alienate the lobby in an election year.