![Iranians celebrated a deal that lifted sanctions against their nation. The deal is less popular in the U.S. Congress, but that hardly matters. [Credit: The Guardian]](https://i0.wp.com/www.dougsbriefcase.com/blog/wp-content/uploads/2015/07/Credit-the-guardian.jpg?resize=300%2C168)
Iranians celebrated a deal to lift sanctions against their nation. The agreement is less popular in the U.S. Congress, but that hardly matters. [Credit: The Guardian]
David, Israel’s second king, would establish his capital in that city whose name is every bit as inapt as Philadelphia (city of brotherly love) or Los Angeles (city of angels). Jerusalem, David’s chosen capital, means “city of peace.”
It has more often been a city of contention, war and strife. The reverberations from that ongoing discord reached the Supreme Court last month in a case that carries implications for whether the U.S. will continue to be governed as a Republic or ruled by a king.
The case’s roots are prosaic enough, buried in subsection 214(d) of the Foreign Relations Authorization Act of 2003. That provision establishes that a child born in Jerusalem to American parents can list Israel as her place of birth on her U.S. passport.
That designation is hardly innocuous. Jerusalem’s political status is less clear-cut than in David’s time. Israel established control of West Jerusalem during the war that marked the Jewish state’s rebirth. It captured East Jerusalem, which includes sites that hold profound significance for each of the world’s great monotheistic religions, during the Six-Day War of 1967. And though the Knesset has formally denoted Jerusalem, “complete and united,” as its capital city, no country maintains an embassy there.
The U.S. does not recognize any government as having sovereignty over Jerusalem (Opinion of the Court, p. 3). As a consequence, the State Department prohibits U.S. citizens born in Jerusalem from listing Israel as the country of their birth. That policy directly conflicts with subsection 214(d), thus provoking the case of Menachem Binyamin Zivotofsky v. John Kerry.
Zivotofsky was born in Jerusalem. His parents asked that his passport list Israel as his country of birth. The State Department refused, citing its Foreign Affairs Manual, which requires that Zivotofsky’s passport list his birthplace as Jerusalem. His parents sued, arguing that subsection 214(d) requires that the department accede to their request.
Six justices voted to uphold the State Department policy, striking down subsection 214(d) as an unconstitutional exercise of Congressional power. The Court held that Article II of the Constitution confers “exclusive” and “conclusive” power on the President to grant formal recognition to a foreign sovereign. Since the President has not formally recognized Jerusalem as part of Israel, Congress had no authority to enact a contravening policy. Thus did six justices give more force to a State Department manual than to an Act of Congress.
The dissenters argued that subsection 214(d) has nothing at all to do with granting formal recognition. Passports do not declare that Jerusalem belongs to the State of Israel. They merely certify their holders as U.S. citizens, whether by birth or naturalization. Since Article I grants Congress power to “establish a uniform rule of naturalization,” lawmakers have a long-recognized authority relating to passports. That authority, the dissenters maintained, extends to enacting laws that permit Zivotofsky to have Israel recorded as his country of birth on his passport. Such designation, the dissenters wrote, does not encroach on the President’s authority to recognize foreign governments since “making a notation on a passport or birth report does not encumber the republic with any international obligations” (Dissent, p. 6).
The case represents a victory for the Obama Administration, but less sweeping than it had sought. The White House wanted more — a broad declaration from the Court that the President alone, unfettered by Congress, can exercise virtually all foreign affairs powers. The justices were unanimous in rejecting the government’s audacious assertion that the President has “exclusive authority to conduct diplomatic relations,” along with “the bulk of foreign-affairs powers” (Opinion of the Court, p. 16). “This Court,” the opinion states, “declines to acknowledge that unbounded power.”
The Obama Administration nevertheless continues to exert something approaching unbounded power in foreign affairs. Whatever one thinks of the substance of the Iran nuclear deal, its process should trouble anyone who believes in constitutional governance. Though the agreement functions very much as a treaty, the President has refused to submit it to the Senate for ratification. Instead, his government bypassed Capitol Hill and brought the deal directly to Turtle Bay, where the UN Security Council ratified it, thus setting in motion the lifting of economic sanctions against Iran. The President fully intends to implement the agreement without Congressional approval and even — should it come to that — in defiance of a Congressional resolution of disapproval.
“Before this country declared independence,” Justice Scalia began his dissent, “the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs.” The Founders, Scalia continued, “had other ideas when they organized our government,” adopting a Constitution that “divides responsibility for the nation’s foreign concerns between the legislative and executive departments.”
Some 226 years later, foreign policy is increasingly conducted in ways that would be more familiar to King David and George III than to Madison or Hamilton. Congress’s role in foreign affairs has been effaced and risks extinction.
Reversing this trend will be among the next President’s most urgent challenges.