The Status of Jerusalem Post-Zivotofsky (Passport Case)

Sam Seham

ADC Policy Department

On June 7th, the Supreme Court announced its decision in Zivotofsky v. Kerry, striking down Section 214(d) of the U.S. Foreign Relations Authorization Act. This part of the law required the U.S. Department of State to put Israel as the country of birth for any U.S. citizen born in Jerusalem, upon request by the U.S. citizen, but did not allow U.S. citizens born in Jerusalem to claim Palestine as their country of birth. Both the Bush and Obama Administrations had voiced strong objections to the section, claiming that the requirement jeopardized the efforts of the Executive to negotiate détente between Israel and Palestine.

The American-Arab Anti-Discrimination Committee (ADC) was gratified upon hearing of the Supreme Court’s decision in Zivotofsky v. Kerry. ADC, acting on behalf of its mission to protect the civil rights and civil liberties of Arab-Americans and promote mutual understanding, was the only Arab-American civil rights organization to submit an amicus brief in support of the Secretary of State.

ADC’s brief challenging the constitutionality of Section 214(d) was three-pronged in its approach. First ADC backed up the claim that the President is the only appropriate agent to recognize foreign sovereigns, and that the statute passed by Congress thus impermissibly infringed on the President’s power to conduct foreign relations. Second, ADC’s legal team argued that even if the Congress did have the constitutional authority to pass Section 214(d), by allowing ordinary people to claim that Jerusalem was in Israel, Congress was violating a constitutional prohibition against delegating its regulatory authority to private citizens. It is simply common sense that if we give Congress the power to do something, it cannot then go and pass off that power to a non-governmental, non-accountable third party.

ADC also argued that the law had a discriminatory effect on Palestinian Americans and violated the Equal Protection Clause enshrined in the 14th Amendment. The deference extended to Israeli-Americans was never extended to Palestinian-Americans. To this day Palestinian-Americans cannot put Palestine as their place of birth, let alone claim the Jerusalem is part of Palestine.

In its decision, the Supreme Court echoed ADC’s belief that recognizing foreign states was indeed within the purview of the Executive. ADC notes, however, that the Supreme Court’s decision does not properly address Congress’ usurpation Executive prerogatives, the real root of the issue at hand. The Court’s opinion, penned by Justice Kennedy, stated only that the President had an exclusive right to recognize foreign nations and actually defended Congress’s authority to weigh in on other policy determinations.

This language is not enough for groups like the ADC that would like to check Congress’s continued obstructionist approach to U.S. Foreign Policy initiatives. Earlier this year, the decision of leading members of Congress to invite Israeli Prime Minister Benjamin Netanyahu to address a joint session epitomized how the Congress continues to undermine U.S. Foreign Policy. The move strained U.S.-Iranian relations in a time when a cordial rapport is necessary for any progress on nuclear talks.

Although not employed to this effect, the majority opinion of the Supreme Court actually contained the language that would help stop congressional meddling. Kennedy writes that only the Executive Branch is capable of a singularity of purpose and so it is the proper body to engage in the precarious arena of international affairs. He tries to limit this statement to the recognition of sovereign nations. However, the American Insurance Assn. v. Garamendi case, from which Kennedy draws his logic, has nothing to do with recognizing nations or their proper boundaries but rather affirms that the President should have absolute discretion when crafting and executing American Foreign Policy.

Justice Kennedy got the logic right but applied it too narrowly. The President must be able to shape foreign policy and Congress should be relegated to a rubber stamp role, negotiating budgets and ratifying major treaties but not creating policy by itself. If actual progress is to be made in the Middle East, America must pursue a unified and moderate policy that may only come through the Executive branch.


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