In what was essentially a separation-of-powers case, the Supreme Court today struck down a provision of the 2002 Foreign Relations Authorization Act, which directed the State Department to list the birthplace of Jerusalem-born Americans as "Jerusalem, Israel." It has been the State Department's policy under successive presidents since 1948 to list simply, "Jerusalem," in keeping with the policy of neutrality regarding the sovereignty of Jerusalem. The state department refused to comply with the law, and George Bush (president at the time), added a signing statement indicating he thought the provision was unconstitutional as it infringed on the Executive's ability to conduct foreign policy. President Obama took the same position.
As background information, the United States has never recognized Jerusalem as the capital of Israel, nor that it is even in Israel. No other nation has recognized Jerusalem as the capital of Israel either, which is why there are no foreign embassies there. Israel declared its borders when it asked for recognition in May of 1948, and the borders they declared were the ones set forth by the 1947 UN General Assembly partition proposal, which of course did not include Jerusalem. Israel has never legally acquired territory since that time.
The case was brought in 2002 by the parents of Menachem Zivotofsky, an American born in Jerusalem. AIPAC, which had been instrumental in adding the provision to the appropriations bill and whipping the unanimous vote in the senate, argued in briefs for Zivotfsky's position.
Today the court decided 6-3 in favor of the State Department's position. In the majority were Justices Breyer, Sotomayor, Kennedy, Ginsburg, Kagen and Thomas (!). In the minority were Chief Justice Roberts, and Justices Alito and Scalia. In his opinion, Justice Kennedy made it plain that the legislature had clearly tried to usurp the Executive's power to recognize the sovereignty of other countries. He wrote:
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..."
...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 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."
Scalia, Roberts and Alito argued that designating Jerusalem as part of Israel on a US passport does not change US foreign policy. The
editorial board of the New York Times called that argument "disingenuous," writing, "this disingenuous argument ignores the central, unacceptable purpose of that 2002 law, which was explicitly to contradict the executive branch’s policy regarding Jerusalem. In fact, it’s right there in the law’s title: United States Policy With Respect to Jerusalem as the Capital of Israel."
The court made the right decision. As writer Sam Kleiner put it, "The problem is that, on separation-of-powers grounds, Zivotofsky's case is largely without merit. The Constitution gives the president the right to receive ambassadors, and this has broadly been interpreted to include a "recognition power" that allows for the president to speak as the sole representative of the United States in matters of international diplomacy. "
And how about that: Thomas was among the Justices who could see the blindingly obvious!