On Monday, the Supreme Court ruled on what the New York Times called “an important separation-of-powers case” that brought the Middle East to the bench. In a 6-3 decision, the court rejected the premise of a 12-year-old lawsuit aiming to list “Jerusalem, Israel” as the birthplace of Menachem Zivotofsky on his American passport. State Department policy calls for just “Jerusalem” to be listed on the passports of Jerusalem-born Americans — estimated at about 50,000 — skirting the conflict surrounding who has sovereignty over the city.
Zivotofsky’s parents filed their lawsuit in 2002, soon after Congress passed a law declaring that citizens like their son — who was born that year — should have Israel listed on their passports as their birthplace. Then-President George W. Bush signed the provision into law but ignored it in practice; Presi
dent Barack Obama has followed suit, reflecting the longstanding U.S. position of remaining neutral on the subject of Israel’s self-proclaimed capital.
The president, the Supreme Court ruled, has the power to recognize foreign nations — not Congress. The 2002 law was declared unconstitutional.
The ruling raised hackles among some in the American Jewish establishment, and both resolves and raises questions about the extent of executive power. Moment spoke with Mark Graber, the Jacob A. France Professor of Constitutionalism at the University of Maryland’s Carey School of Law, about the case and its implications.
What’s the significance of this decision?
In many cases, we do not know what a decision means until the Supreme Court runs with it a little bit. Who knew that a decision in 1965, Griswold v. Connecticut — that married people could use birth control — in less than ten years would provide the underpinnings for Roe v. Wade, and may be a crucial precedent underlying same-sex marriage?
The decision states unequivocally for the first time in American history that the president has the exclusive power of recognizing a foreign country and declaring what that foreign country is. Now, this means Congress cannot pass a law that simply says, “We disagree with you, Mr. or Ms. President.” Now, how far does that go? We don’t know.
So, to take a simple example: Suppose a president had said Jerusalem was part of Israel and then said, “I want money to build an embassy in Jerusalem.” Congress could say, “We’re not going to give you the money.” Congress could say, “We’re not going to station federal troops there, because it’s not part of Israel.” There are numerous powers Congress can exercise — the commerce power, the war power — in ways that are inconsistent with the president’s authority. But what Congress clearly can’t do is simply say, “Mr. President, you’re wrong.”
We don’t know what the border is between Congress saying the president is wrong, which they cannot do, and Congress saying, “We’re exercising an independent power,” which they can do.
In many ways, this is a largely symbolic case. It’s as if Zivotofsky said, “I want a green cover,” and the U.S. said no. But the passport he has… gives him the same rights as any other passport under American law.
Can passports represent a country’s foreign policy stance?
In this case, what Congress tried to do is include a statement on the passport that was inconsistent with our presidential recognition — or, in this case, non-recognition — of Jerusalem as part of Israel. Now, Congress has power over the rights a passport has, so this would have been a different case — and who knows how it comes out — if Congress wanted to change the rights entailed by an American passport. But Congress wasn’t doing that.
It may be a symbol. For example, a lot of Palestinian groups objected vociferously to the use of “Jerusalem, Israel,” even though it affected nobody’s rights. And symbols mean a lot. So for example, in a lot of states where same-sex couples have all the rights except that they’re not married – marriage is a big symbol, Jerusalem is a big symbol. A lot of politics is symbolic.
The U.S. has made it a point since Israel’s founding not to recognize any sovereignty over Jerusalem. Does this decision take a stance on the status of Jerusalem or does it reaffirm neutrality?
What it does is simply say: Whether Jerusalem is a part of Israel is for the president to determine.
So suppose Obama says, “You know, I’ve been thinking it over; Jerusalem is a part of Israel. From now on, all passports will say “Jerusalem, Israel.” And then Congress says, “No, no, actually, we’ve been thinking it over, and Jerusalem is not a part of Israel,” and Congress passes a law saying no passport will say “Jerusalem, Israel.” The consequence is the passport will say “Jerusalem, Israel.”
The decision says, for the purpose of American foreign policy, the president is the person who determines whether Jerusalem is part of Israel — or, for example, what are the boundaries of the Ukraine and Russia.
Some are characterizing the decision as expanding executive influence. (Justice Antonin Scalia’s dissent says Justice Clarence Thomas’s interpretation “produces a presidency more reminiscent of George III than George Washington.”) Does it expand it or maintain the status quo of presidential power?
To some degree, that’s the question of whether the decision is right or wrong. Because the majority says, we’re just doing or saying what’s always been the case, and the dissent… is saying no, you’re expanding presidential power.
The middle position was that it was not entirely clear whether the president had exclusive authority to recognize a country.
It’s less that they expanded presidential authority, but that the majority clarified presidential authority, and “clarified” is on the more expansive side.
Justice Thomas has a different position. The majority said that this is an enumerated presidential power — if you look at the Constitution, the power to receive ambassadors… means the president has the power to recognize countries.
Thomas wants to say that the president has unenumerated foreign policy prerogative powers — that, essentially, if it’s a foreign policy matter, the president can do it unless the Constitution clearly says otherwise. This was the theory of the Bush administration. It is the notion that the president has the prerogative powers of an 18th-century English monarch. And Thomas is the only person on the court who adheres to that theory.
The court seemed to be ruling on matters of constitutionality, but the other major takeaways concern a famously difficult conflict that’s becoming increasingly politicized in the U.S. Do you think the justices gave weight to the Israeli-Palestinian conflict and its American political implications in their decisions?
I think the justices really tried to avoid it.
They said, “All we’re going to say is that whatever the president says goes.” Now, you might say that the justices might have been better off saying that this is a matter that the president just fights out with Congress, and we don’t decide. This is called the political question doctrine. This is not a court that likes to sit on the sidelines. So they don’t tend to use the political question doctrine when a court a hundred years ago might have.
This interview has been edited for length and clarity.
Congress always has the opportunity to tell the president what it thinks and does so by passing non-binding resolutions. In this case, Congress chose to pass a law, intending to change public policy, and the Supreme Court said, no, you can’t do it that way.. The court has done its duty in maintaining the separation of powers. If Congress is serious about forcing the President’s hand, it will need to appropriate the power through constitutional amendment. It is unlikely that they will do so in this instance.
When the President signs his nuclear proliferation agreement with Iran, careful to refrain from calling it a treaty, the same theory will tie Congress’ hands, should they try to object or overrule him..