Jerusalem is not Israel (on US passports)

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Sixth century mosaic map of Jerusalem

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Sixth century mosaic map of Jerusalem

Sixth century mosaic map of Jerusalem

Sixth-century mosaic map of Jerusalem

Back in 2002, Congress passed the 2003 Foreign Relations Authorization Act, which included (as section 214) a statute headed “United States Policy with Respect to Jerusalem as the Capital of Israel.” Subsection (d) of §214 had this to say in that regard:

RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. – For purposes of the registration of birth, certification of nationality, issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

When he signed the bill into law, President George W. Bush rejected the statute in a signing statement that read in part:

Section 214, concerning Jerusalem, impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

Yesterday, the Supreme Court, at the behest of the Obama Administration, upheld this Bush Doctrine in Zivotofsky v. Kerry, a case involving a boy born to American parents in Jerusalem shortly after the 2003 Act became law. The parents sued after being informed by the State Department that his passport could not identify his place of birth as Israel. Since the establishment of the State of Israel in 1948, U.S. policy has been that the status of Jerusalem is unresolved.

In its 6-3 decision, the Court declared that the “recognition power” — derived from the Constitution’s statement (Art. II, §3) that the President “shall receive Ambassadors and other public Ministers” — is the President’s “sole prerogative.” As Justice Anthony Kennedy put it in his majority opinion: “Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear. Congress cannot require him to contradict his own statement regarding a determination of formal recognition.”

As the old saying goes, hard cases make bad law, and there’s no doubt this was a hard case. The precedents were mixed; the constitutional doctrine exiguous. What’s clear is that Congress’ entire purpose was to push the country (as it has tried to do before) to acknowledge Israeli sovereignty over Jerusalem by recognizing it as Israel’s capital. Even as he disputed the majority’s position on recognition, Justice Antonin acknowledged as much in his dissent:

But these features do not show that §214(d) recognizes Israel’s sovereignty over Jerusalem. They show only that the law displays symbolic support for Israel’s territorial claim. That symbolism may have tremendous significance as a matter of international diplomacy, but it makes no difference as a matter of constitutional law.

It is precisely because diplomacy frequently depends on such symbolism that Congress should defer to the authority of the Executive Branch, charged as the latter is with the conduct of foreign policy. As the Court made clear, this does not mean that Congress has no constitutional function when it comes to foreign policy — most importantly with respect to declarations of war and military appropriations. As for what constitutional law signifies, I’d say the Court had sufficient reason to see the determination of place of birth on U.S. passports as representing just the kind of recognition the Constitution envisaged when it gave the President responsibility for receiving ambassadors and other public ministers.
  • Moriah

    Jerusalem has known to be the capital of the United Kingdom of Israel since 1010 B.C. Jerusalem is the capital of Israel.
    Case closed, next!

  • samuel johnston

    Shall we let the -let’s be kind- religious leaders- in each geographic area of the planet dictate our foreign policy? Would say-North Africa- be a good place to start? How about Southeast Asia? India?

  • I cannot believe you’d ever utter anything in good faith so I’m left wondering what your hidden agenda might be.

    Of course, the notion that Jerusalem’s ‘status’ (as opposed to its precise municipal boundaries) is ‘unresolved’ is ludicrous.

  • Norm Martin

    The Supreme Courts decision seems clear to me, Jerusalem is a disputed city.

  • samuel johnston

    No hidden agenda for me Art. Any country must be able act in its own interest, even it it upsets it’s close allies. Israel has rightly insisted on this privilege for itself. As to Constitutional ruling, well, that is the Supreme Court’s job. What is your “hidden agenda”?