Three thou­sand years have passed since a shep­herd-turned-war hero-turned-ter­ror­ist-turned-king cap­tured an obscure city sit­u­at­ed on a hill 34 miles inland from the Mediterranean.

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.