By Morgan Cohen —
The status of Jerusalem is one of the most hotly contested issues in the Israeli-Palestinian conflict. Just last week, at a conference in Qatar, Palestinian Authority President Mahmoud Abbas accused Israel of “trying to erase the Arab, Muslim, and Christian nature” of the city as part of a broader campaign to “Judaize Jerusalem and position it as the capital of the occupation state.” Israeli Prime Minister Benjamin Netanyahu quickly shot back, releasing a statement that called on the Palestinian leadership to “stop denying the past” and accept that “Jerusalem is the eternal capital of the Jewish people.”
Since Israel’s founding in 1948, the United States’ policy has been to recognize no state as having sovereignty over Jerusalem. From Truman to Obama, every president has concluded that such a move would fatally impair America’s ability to serve as an honest broker in the Middle East peace process.
On several occasions, however, Congress has attempted to frustrate the president’s ability to implement this policy. In 1984, Congress considered, but ultimately failed to enact, a law that would have required the Reagan administration to move the U.S. Embassy in Israel from Tel Aviv to Jerusalem. In 1995, the 104th Congress succeeded where the 98th Congress had failed and passed the Jerusalem Embassy Act, which proclaims that the “[p]olicy of the United States” is that “Jerusalem should be recognized as the capital of the State of Israel.” To this end, the Act makes a portion of the State Department’s budget contingent on moving the embassy to Jerusalem. Perhaps aware of the unintended ramifications this provision might pose for U.S. foreign policy in the Middle East, the Act contains a waiver provision that allows the president to delay the funding restriction for six months, should he deem it necessary to “protect the national security interests of the United States.” Not surprisingly, Presidents Bush, Clinton, and Obama have renewed the waiver every six months since the Jerusalem Embassy Act was enacted.
Congress’ latest attempt to alter the United States’ recognition policy came in 2002 with the passage of section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003 (“FRAA”), entitled “United States Policy with Respect to Jerusalem as the Capital of Israel.” Like its predecessors, this section “urges the President…to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem.” It also prohibits the appropriation of any funds “for the publication of any official government document which lists countries and their capital cities unless the publication identifies Jerusalem as the capital of Israel.” Ironically, the provision that would ultimately prove the most controversial is the most seemingly innocuous. Part (d) of section 214 states:
For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.
In other words, the parents of an American citizen born in Jerusalem may request that “Israel” be recorded as the place of birth on the child’s passport, even though the official policy of the United States for the past six decades has been to refuse to recognize Israel’s sovereignty over the city.
Although President Bush signed the FRAA into law, he refused to implement section 214 on the grounds that it “impermissibly interfere[d] 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.”
Shortly after Congress enacted the FRAA, Menachem Zivotovsky was born to an American-Jewish couple living in Jerusalem. When his mother applied for his passport, she exercised her right under section 214(d) to request that his place of birth be recorded as “Jerusalem, Israel.” When embassy officials told Zivotovsky’s mother that State Department policy prohibited them from complying with her request, she filed a lawsuit on her son’s behalf against the Secretary of State seeking a court order requiring the State Department to accede to her request.
The case eventually reached the Supreme Court, which heard oral argument last November. At first glance, the question presented in M.B.Z. v. Clinton may seem modest in scope: Are the fifty odd thousand Americans born in Jerusalem entitled to have “Israel” recorded as the place of birth in their passports, as Congress says they are? The implications of this question, however, touch directly upon one of the most contentious issues in constitutional law, namely, which branch of the federal government – the executive or the legislature – has the power to control U.S. foreign policy. Does the Constitution assign the power to “speak for the Nation in international affairs” exclusively to the executive, as President Bush claimed in the statement he released when signing the FRAA into law, or does Congress share in this power?
The Court asked the parties to brief two issues. The first asks whether the Court even has jurisdiction to hear the case, or whether a rule derived from past precedent, known as the “Political Question Doctrine,” prevents it from adjudicating the dispute. This rule prevents, in one instance, judicial review over the exercise of powers specifically assigned by the Constitution to one of the political branches.
The Obama Administration – which is defending the FRAA before the Court – argues that because the Constitution’s “Reception Clause” assigns to the president alone the power to “receive Ambassadors and other ministers,” this necessarily includes the power to determine which ambassadors to receive, and thus, which states to recognize. Before the president can recognize a particular state, the argument goes, he must first determine where its boundaries lie. It is pursuant to this constitutional provision that presidents have refused to recognize Israeli sovereignty over Jerusalem for more than 60 years. The Obama Administration contends that, because Zivotovsky’s lawsuit challenges a decision the Constitution places solely within the discretion of the president, pursuant to the “Political Question Doctrine” the suit presents an issue over which federal courts lack jurisdiction.
At oral argument, the justices appeared reticent to endorse this position. Justice Ruth Bader Ginsberg noted that if the Court were to accept the government’s “political question” argument, it would also resolve a much larger constitutional question by default. That question, which comprises the second issue the Court asked the parties to brief, is whether section 214 of the FRAA impermissibly infringes on the President’s power to recognize sovereigns. Put another way, if Congress does in fact share the “recognition power” with the President, how is that power allocated between each branch? At oral argument, Justice Ginsberg worried that, “if the Court decides that the Constitution commits this authority exclusively to the President,” which it would have to in order to rule that the case presents a non-justiciable political question, “then it’s all over. That’s the merits of the case….” Hence, by ruling that it lacks the ability to hear the case, the Court would effectively hold that the Reception Clause establishes a plenary power with respect to anything the President believes touches on recognition. As Justice Sotomayor observed, “the outcome [of such a ruling] is that the President is saying that he’s entitled to ignore the Congress.” “I don’t know what kind of message that sends,” she went on, “but it’s a little unsettling that…we’re not going to determine whether this law is constitutional or unconstitutional.”
Solicitor General Donald Verrilli, who appeared before the Court for the Obama Administration, suggested that even if the Court did reach the second issue and go on to determine the scope of the President’s recognition power, there “may not be very much of a difference” in the outcome. Were the Court to reject the Government’s contention that the Reception Clause provides a constitutional basis for the President’s plenary recognition power (and thus for invoking the “Political Question Doctrine”), Verrilli argued that, in the alternative, it should look to the “gloss” on executive power left by centuries of historical practice. “[For] 220-plus years…[there is not] a single example of Congress actually exercising the power, and I think in addition to the history, there are very good functional reasons why that is so,” he said.
Perhaps most significantly, Verilli argued that while the Government does believe that the Reception Clause is the source of the President’s exclusive and unqualified recognition power, the President would still possess a plenary recognition power even if the Reception Clause were not in the Constitution. The implication is that the recognition power is an inherent plenary executive power, one that (1) inheres in the Office of the President regardless of whether it has been explicitly conferred by the Constitution and (2) cannot be checked by Congress or the courts. As one Court-watcher observed: “This portion of the Solicitor General’s argument is fascinating because he appeared to resurrect the theory of inherent plenary executive powers that had been advanced by the previous administration.”
While the implications of the Supreme Court’s decision regarding the allocation of foreign policy powers between the President and Congress will largely depend on the nature of its holding, one thing is certain: should the Court accept either of the Obama Administration’s arguments, it would deal a significant victory to the executive in the ongoing struggle with Congress to control U.S. foreign policy.
Image courtesy of SOURCE.