So the Supreme Court has decided in the case of Zivotofsky v. Kerry that the Congress cannot mandate to the President and Secretary of State, as they sought to do, what country of birth will be listed on a US citizen’s passport. Congress had attempted to do so by passing a law specifically permitting those born in Jerusalem to place Israel on their passport if they wished to do so. That law, Justice Kennedy argued, is unconstitutional, because recognition of a foreign entity is squarely within the prerogative of the executive branch to determine US foreign policy.
Specifically that means that 13 year old Menachem Zivotofsky, born in Jerusalem, cannot list his birthplace as Jerusalem, Israel, but must list it solely as Jerusalem (without a country designation) because the US takes the position that it will not recognize any country’s sovereignty in Jerusalem until a peace agreement is reached between the Israelis and Palestinians that will, among other things, make that designation. (Full disclosure: though we have never met, I have had several email conversations with Menachem’s father Rabbi Ari Zivotovsky over points of Jewish Law over the years and consider him a friend).
Rather than get all hot under the collar about the slight to Israel -- and it is a slight (Congress has also passed a law proposing the recognition of Jerusalem as Israel’s capital and seeking the moving of the US Embassy which is currently in Tel Aviv to Jerusalem, but those laws have a Presidential waiver built into them, and all US administrations to date have chosen to exercise that waiver and leave the Embassy in Tel Aviv) -- I’d rather like to reflect on the court’s position and that of our executive.
The vote was 6-3, with the court’s liberals, and its Jews, all siding with executive authority and Justices Roberts, Scalia and Alito dissenting. That the Jews, who should be political supporters of the rights of Israel, all opposed Israel’s stand here is not surprising if they voted as a matter of law, for the case is actually quite strong that in matters of foreign policy the executive should trump the congress. What is quite surprising is that the Conservative, strict-constructionist wing did not concur (Clarence Thomas did.) They should have agreed that as a matter of law foreign policy resides with the President. Not only that, but they were the ones, during the Bush years, who regularly argued the extensive rights of an executive presidency, known as the theory of a unitary executive. That they do not do so now smells like the influence of the political calculations of the Israel-supporting right wing.
If this analysis is correct -- some will certainly disagree -- it is disturbing that again (Bush v. Gore? Citizens United? Hobby Lobby?) we see supreme court decisions being driven by those who sanctimoniously insist on strict construction of the constitution in their rhetoric but vote on narrowly partisan (and therefore arguably inadmissible) grounds.
On the other hand, while it seems to me that the law sides with the executive and against the wishes of pro-Israel parties, myself included -- I am saddened that the political choices of this and all previous presidents is so narrowly political and that the President and State Department are unable to think more broadly. For while it may be the President and the Secretary of State’s decision as to what is listed on the passport, there is no reason that this must be the decision.
There is certainly legitimate dispute about some of Jerusalem, but there is also little dispute about other aspects of Jerusalem, and the President, particularly this one, is capable of such fine distinctions were he to choose to draw them. I suspect, but do not know for sure, that Menachem Zivotofsky was born in a hospital well within West Jerusalem (likely Hadassah’s main hospital, or Shaarey Tzedek, perhaps Misgav Ladakh; certainly not Augusta Victoria on the Mount of Olives). Even if the State Department wished to leave open the status of contested territories, it should be able to recognize the Israeli status of those undisputed territories. That would reduce to vanishingly few the children born to Jews in disputed Jerusalem. I would argue the same with regard to the Embassy. The US could, if the President and State Department chose, recognize Israel’s right to name its own capital in West Jerusalem, and move the Embassy there, without prejudicing the question of Israel’s rights or Palestinian rights in the disputed territories of East Jerusalem. Would that rankle a feather or two among Palestinian spokesmen or Saudi Arabian princes? They would ostentatiously say so, but I rather doubt it would in fact. They, too, recognize the reality of Israel in West Jerusalem. Some political courage on the part of our preeminent politicians would go a long way, in fact, to moving things forward. [Could the White House and State Department even, perhaps, acknowledge that there is a more than semantic difference between “settlements” like French Hill in urban Jerusalem and “settlements” like Tekoah in the West Bank?]
My feeling is that the progress we could make quietly toward narrowing the areas in dispute and recognizing the reality on the ground would move us immeasurably forward, rather than as currently envisioned, limit the negotiating chips. We don’t need more negotiating chips to bang our heads about. We need more and more de facto agreement -- until the remaining sore spots recede into insignificance.
It would be nice, it seems to me, if the Executive were to recognize that.