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.
