The Supreme Court of the United States issued the their ruling in the case Zivotofsky v. Kerry on Monday morning, June 8, 2015 and it was a victory for President Barack Obama’s foreign policy. The case in which the American parents of a boy born in Jerusalem wanted their son’s passport to list Israel as the country of birth, the court refused their request. Although framed as deciding the power struggle to determine foreign policy between two branches of government, the legislative and the executive, the case spoke volumes on the US policy towards Israel, and their desire for Jerusalem to be recognized as their capital. The result of the case upset Israeli leadership, and the American Jewish organizations, who let their disappointment and dissatisfaction be known.
In a 6 to 3 decision, the Supreme Court decided against interjecting themselves in the debate as to Israel’s capital. The question involved whether the president or Congress had true power over foreign policy decisions, one which the majority the president has sole authority. Since 1967 when Israel gained full control over Jerusalem after the Six-Day War, the US government’s policy has been to keep Jerusalem’s official status unresolved. The official position was only through a peace agreement would that be decided.
Congress, especially a Republican controlled one however, has been at the forefront of advocating that Jerusalem be recognized as the capital of Israel. First in 1995 adopting that stance, and then passing a provision in a wider foreign policy law in 2002 requiring the State Department to recognize Jerusalem, Israel in passports, and pushing that the embassy be moved from Tel Aviv to Jerusalem. The provision reads, “The secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Republican President George W. Bush signed the law’s provisions, but wrote, “US policy regarding Jerusalem has not changed.” The law has never been used.
President Barack Obama, who has had an adversarial position with Israel and Israeli Prime Minister Benjamin Netanyahu, has kept the policy in place, delaying any formal recognition of the capital or moving the embassy. Republican Presidential candidates in the past couple of elections have called for moving the embassy to Jerusalem, as way of showing their support for Israel.
The 2016 frontrunner Jeb Bush is no different. Bush speaking to reporters on Saturday, May 30, 2015 prior to the Tennessee GOP’s Statesmen’s Dinner said “I support that, absolutely,” when asked about Jerusalem being Israel’s capital and added, “I also support moving the embassy to Jerusalem as well — our embassy. Not just as a symbol but a show of solidarity.”
The specifics of the lawsuit revolve around Jerusalem-born American Menachem Zivotofsky, who American parent s wanted after he was born in 2002 for his passport to list Israel as his country of birth, and for the law to be enforced. For 12 years they Zivotofsky family has been arguing this matter, their case moving up and down the courts, and the defendants names changing to the Secretary of State at the time. Their case had even been in front of the Supreme Court before, overturning the lower courts ruling that the matter should be resolved between Congress and the president.
Justice Anthony Kennedy wrote the 89-page majority opinion, stating, “Recognition is a matter on which the nation must speak with one voice. That voice is the president’s… The power to recognize or decline to recognize a foreign state and its territorial bounds resides in the president alone…. 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.”
Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito dissented. Roberts wrote his own dissention writing, “The court takes the perilous step… Today’s decision is a first. Never before has this court accepted a president’s direct defiance of an act of Congress in the field of foreign affairs.” While Scalia wrote the official dissention, saying that the Constitution, “divides responsibility for foreign affairs between Congress and the president.” Justice Clarence Thomas ruled with the majority, but remained more neutral on the issue.
The justice just rendered their decision, after hearing oral arguments for the case back in November 2014. U.S. Solicitor General Donald Verrilli represented the State Department argued, a decision allowing Jerusalem, Israel, on passports would “provoke uproar throughout the Arab and Muslim world,” would “undermine the president’s authority” on “the most vexing and volatile and difficult diplomatic issue that this country has faced for decades.” Meanwhile, lawyers for the Zivotofskys argued, and Jewish organizations advocated that Congress has the rights over the nation’s “immigration, naturalization and passport policies.”
At that time, Justice Kennedy was more open to a compromise, with Jerusalem, Israel to be listed on the passports, but with the same warning about the official policy that Bush wrote when signing the original law. In the end, Kennedy and the courts most liberal justices, including the three who are Jewish ruled in favor of the president, and leaving American Jewish groups and 50,000 American Jews born in Jerusalem, unable able to have the country of birth officially listed in their passports.
The American Jewish community and organizations reacted, feeling upset, aggravated, and frustrated, viewing it as a ruling on Israel and its capital rather than a power struggle between government branches. The Conference of Presidents of Major American Jewish Organizations issued a statement, which read, “We do not believe that Jerusalem-born American citizens having Israel on their passport would impinge on future negotiations or compromise the role of the United States. Tens of thousands of Americans are affected by this decision.” The conference represents 51 American Jewish organizations.
Nathan Diament, the executive director for public policy of the Orthodox Union issued the official statement, writing, “We are more disappointed by the persistent policy of the United States government – carried out by successive presidents – to treat the capital city of Israel with less respect than that accorded to capital cities of virtually every other nation. Jerusalem is unquestionably the capital of Israel. Even after this court decision, it is high time for the US administration to acknowledge the reality of Israel’s capital – Jerusalem.”
American Jewish Committee General Counsel Marc D. Stern responded at the committee’s annual Global Forum, “The Supreme Court ruling is a personal tragedy for the Zivotofsky family, and a greater one for all US citizens who legitimately claim Jerusalem, the capital city of Israel, as their place of birth.” The AJC had filed an amicus brief in favor of the Zivotofsky’s position.
In Israel, Jerusalem Mayor Nir Birkat issued a statement, saying, “Just as Washington is the capital of the US, London is the capital of England, and Paris the capital of France – so too Jerusalem was and always will be the capital of Israel… I call on US President Barack Obama to publicly declare what we’ve known for generations – that Jerusalem is the capital of Israel and Israel is the home of the Jewish people.”
The former Israeli ambassador to the US, MK Michael Oren also weighed in on the decision, calling it “damaging to Israel’s sovereignty and to the alliance of Israel and the United States.” Oren also put the blame squarely on President Barack Obama’s policies, “Today, to my regret, the court rejected the appeal on the claim that recognizing Jerusalem as Israel’s capital is in the unique purview of the president and behold – President [Barack] Obama uses this authority and chooses not to recognize Jerusalem as our capital.” Only the Israeli government did not formerly respond, Foreign Ministry spokesman Emmanuel Nahshon stated that, “Israel does not comment on rulings by foreign courts.”
Full Text Opinion: Zivotofsky v. Kerry, June 8, 2015
Bonnie K. Goodman is the Editor of the Academic Buzz Network, a series of political, academic & education blogs which includes History Musings: History, News & Politics. She has a BA in History & Art History & a Masters in Library and Information Studies, both from McGill University, and has done graduate work in Jewish history at Concordia University as part of the MA in Judaic Studies program. She covers US, Canadian & Israeli politics, with a particular focus on the Obama presidency, Congress, domestic policy, and elections.