Let Congress and the executive branch figure out the question of Jerusalem. 

Supreme Court Should Steer Clear of Mideast Politics

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Menachem Zivotofsky hasn’t had his bar mitzvah yet, but he’s already been to the Supreme Court -- twice. A U.S. citizen born in Jerusalem, Zivotofsky (through his American-Israeli parents) seeks to have his birthplace named as “Israel” on his U.S. passport, not “Jerusalem” as is State Department practice. Having previously determined that the courts had the authority to hear the case, the Supreme Court is now hearing oral arguments and will decide whether a 2002 law requiring the State Department to add “Israel” to the place of birth on passports such as Zivotofsky’s unconstitutionally infringes on the president’s foreign relations power.

An old adage has it that in the U.S., every conflict eventually becomes constitutional and goes to the Supreme Court. If that’s true, this time the Middle East is getting the Supreme treatment. A number of American Jewish organizations, including the American Jewish Committee and the Anti-Defamation League, have weighed in as friends of the court, as has the American-Arab Anti-Discrimination Committee.

These entities haven’t suddenly discovered an interest in the separation of powers. They’ve chosen sides in this particular constitutional game for no other reason than to encourage the victory of their favored political side. The Jewish organizations want Congress to be allowed to compel the executive branch to take a more strongly pro-Israel position on Jerusalem than any president from Harry Truman on has ever done. The Arab organization wants the president to be able to maintain the traditional U.S. position of neutrality on Jerusalem because it prefers that result for political reasons. If these shamelessly outcome-driven amici are the friends the Supreme Court has, who needs enemies?

Unfashionable as it may be, let me describe the actual law relevant to the case. In 2002, Congress passed a law that both urged the president to move the U.S. Embassy in Israel from Tel Aviv to Jerusalem and also specified that an American born in Jerusalem would have the right to request that his passport specify his or her place of birth as “Jerusalem.” President George W. Bush signed the law. But he appended what is called a “signing statement” disclaiming its constitutionality. Bush first explained that the provisions relating to Jerusalem violated the Constitution by interfering with his authority over the “unitary executive.”

You might remember the doctrine of the unitary executive, a cornerstone of constitutional thinking in the first four years of Bush’s administration. Among other things, the doctrine undergirded the belief that the president could ignore laws barring secret surveillance and torture.

But Bush also added a less tendentious objection to the 2002 law: that Congress was interfering with his power to speak “for the nation” on foreign affairs and to choose which countries to recognize.

The Barack Obama administration has maintained the second view that Bush expressed in his signing statement. In his brief in the Zivotofsky case, the solicitor general says the law infringes on the president’s power to recognize foreign sovereigns. This power falls under the general foreign affairs power, the administration reasons, where precedent establishes that it is especially important for the U.S. to speak “with one voice.” The brief argues that the status of Jerusalem is “highly sensitive” and that the executive branch has therefore maintained an unbroken policy of neutrality with respect to the city’s status. Putting “Israel” under “place of birth” in an official U.S. government document would amount to recognition of Israeli sovereignty over Jerusalem, the government insists.

The U.S. Court of Appeals for the D.C. Circuit bought the argument that the passport change would count as recognition, and it struck down the law as the Obama administration requested. Zivotofsky, ably represented by Supreme Court veteran Nathan Lewin, seeks to get around this conclusion in two ways. (Disclosure: I know Lewin slightly. Once, after we argued against each other before the U.S. Court of Appeals for the Third Circuit, he hugged me. Then he won the case. Ouch.)

First, Lewin argues that a line in a passport doesn't amount to formal recognition, and that Congress has the authority to make laws regulating passports. As a fall-back, he maintains that the power to recognize foreign countries isn't exclusive to the president.

The first argument is better than the second. Congress has indeed passed laws authorizing issuance of passports, and it’s not obvious that the world would shake if a handful of passports read “Israel” instead of Jerusalem.

The problem is that the argument undercuts itself. After all, why is Zivotofsky bringing the case in the first place if not to make it appear that the U.S. has now recognized Jerusalem as part of Israel? Why, for that matter, did Congress pass the law if not to send that message?

In the real world, if the court held for Zivotofsky, it’s true that sophisticated observers would understand that Congress, not the president, had set the policy -- but that would precisely reflect a conflict between the different branches of government, a circumstance that the Constitution for the most part has been interpreted to prohibit. Of course, it’s impossible for a tripartite government truly to speak with one voice on foreign affairs. But it’s definitely a goal toward which a rational constitutional system should aspire.

Lewin’s second argument, that the president doesn’t have exclusive power to recognize foreign governments, depends mostly on historical evidence. The solicitor general’s brief expends much of its energy on the history of the early republic, emphasizing Thomas Jefferson and Alexander Hamilton’s official positions with respect to U.S. recognition of France in the aftermath of the French revolution. Zivotofsky’s brief gives examples to argue that the power was never exclusive and that Congress sometimes took action suggesting recognition.

This is what’s sometimes called law office history. It’s transparently intended to convince the originalist justices -- and it’s never truly definitive. To read either brief, you’d have no idea that the recognition of France was actually an intensely contested point within George Washington’s cabinet, with the Anglophile Hamilton trying to convince the president that he had the authority to refuse to recognize the revolutionary government, and the Francophile Jefferson, outflanked, desperately seeking recognition of the new revolutionary republic.

But that’s inside baseball. The court won’t decide this case on history, whatever it may claim to be doing. Let’s just hope the decision turns on the court’s views about executive power, not the Middle East.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Max Berley at mberley@bloomberg.net