In a rare rebuke to the powerful Israel Lobby, the U.S. Supreme Court struck down a congressional encroachment on presidential powers regarding the official status of Jerusalem. Even some right-wing justices turned on each other, as ex-CIA analyst Paul R. Pillar explains.
By Paul R. Pillar
The Supreme Court’s decision this month in Zivotofsky v. Kerry was not only the correct outcome of the case at hand and of the specific issues it raised but also an important statement about the need for consistency and coherence in the administration of U.S. foreign policy. The Court’s majority scrupulously avoided wading into the politics underneath the case, but its decision has helped to minimize the extent to which political undercurrents make for incoherence in foreign policy.
The decision struck down, as an unconstitutional Congressional encroachment on Executive Branch powers, the portion of the Foreign Relations Authorization Act for 2003 that would have required the State Department to indicate on passports issued to U.S. citizens born in Jerusalem that the place of birth was “Israel” if the individual requested that designation.
U.S. Supreme Court Justice Antonin Scalia.
This requirement contradicted the longstanding U.S. position that the sovereignty of Jerusalem is a matter yet to be decided by international negotiation. That position also is consistent with the policies and practices of every other country besides Israel itself.
Justice Anthony Kennedy’s majority opinion was firmly rooted in the concept that in foreign relations, the United States must speak with one voice. Recognition of foreign states, and the terms under which recognition is extended, as was true with the Carter administration’s recognition of Communist China and the related special status of Taiwan, has always been a presidential prerogative.
Even when Congress also has played a role, as was true with legislation relating to relations with Taiwan, presidential primacy on this subject has not been seriously challenged. And according to the majority opinion, what is said on a passport is inseparable from the broader issue of recognition.
Chief Justice John Roberts, in a dissent joined by Justice Samuel Alito, questioned that last connection, contending that only a “perception” of recognition was involved, and that the majority was in effect submitting to an “international heckler’s veto.” But there is no doubt that recognition was what Congress was attempting to deal with in the nullified section of the legislation, the title of which is “United States Policy with Respect to Jerusalem as the Capital of Israel.”
Roberts’s further argument that Congress is constitutionally empowered to do all sorts of things contrary to a president’s policy toward a foreign government, including declaring war or establishing an embargo, is off the mark, since even a war or embargo does not necessarily speak to recognition of the foreign state in question. (E.g., the United States currently is sanctioning Russia but still recognizes it as a sovereign state.)
A separate dissent by Justice Antonin Scalia, joined by Roberts and Alito, is best read in conjunction with a concurring opinion by Clarence Thomas, who, in a rare break with Scalia, agreed with the majority regarding the key question concerning passports.
Thomas points out how loosely and expansively Scalia tries to apply the Necessary and Proper Clause of Article I of the Constitution in arguing for a Congressional role regarding the birthplace box on passports, far more loosely and expansively than is Scalia’s custom in addressing many other issues. Thomas quotes back some of what Scalia has said on other cases and concludes that his conservative colleague’s opinion in the present case represents a “dubious way to undertake constitutional analysis.”
Strictly maintaining the policy that sovereignty over Jerusalem is yet to be settled through negotiation is essential if the United States is to have any hope of maintaining (or rather, salvaging) a useful role in attaining a settlement of the Israeli-Palestinian conflict.
Going beyond the Jerusalem matter, the issue that first comes to mind as involving similar political dynamics is the impending nuclear agreement with Iran. As with the Jerusalem question, this is another instance of members of Congress marching to the Israeli government drummer and taking actions that contradict and undermine the Executive Branch’s execution of an important element of U.S. foreign policy.
The Iran issue has already demonstrated the chaotic result when Congress (or more precisely, what happens to be the current majority party in Congress) tries to conduct its own foreign relations at odds with the official policy that the Executive Branch is running.
The chaos has included the notorious letter of Republican senators to the leadership of Iran and the uncoordinated invitation to the Israeli prime minister to address Congress for the purpose of denouncing U.S. diplomacy. The Supreme Court’s decision represents at least a modest backtracking from this sort of damage.
More generally and more broadly, the Court’s majority has reaffirmed that there is such a thing as the pursuit of national interests in the international arena that is distinct from domestic politics. In this regard it is worth noting that the U.S. policy regarding Jerusalem has been maintained by every U.S. administration, Republican and Democratic, ever since the United States recognized the new State of Israel during Harry Truman’s presidency.
The domestic political process, including actions by the U .S. Congress, does play an important role in determining U.S. national interests, though more as a matter of broad objectives and values than as tactics and administrative details. That process is essential in addressing unavoidable trade-offs involving major decisions and major interests, such as weighing expected gains versus likely costs in any resort to warfare.
That is why Congress ought to devote more of its energies to efforts such as enacting an authorization specifying objectives and limits for the current use of military force than to telling the State Department what it ought to write in a box on someone’s passport.
Paul R. Pillar, in his 28 years at the Central Intelligence Agency, rose to be one of the agency’s top analysts. He is now a visiting professor at Georgetown University for security studies. (This article first appeared as a blog post at The National Interest’s Web site. Reprinted with author’s permission.)
“The Court’s majority scrupulously avoided wading into the politics underneath the case”
For an excellent analysis of the “politics underneath the case” see
http://mondoweiss.net/2015/06/dershowitz-supreme-jerusalem/
The case started out as Zivotofsky v. Clinton.
Looking up Hillary’s record with regard to Jerusalem isn’t a bit encouraging.
And in 2012 the woman made a string of “errors” while visiting Israel.
Hint: they weren’t ‘slip-ups’. Hillary is Holy Israel’s very favorite candidate, and if you suppose things are bad now, wait until Israel controls both the Congress AND the Presidency. A couple of small changes on the Supreme Court and the Vatican will begin to share power with Israel at that final US.GOV spot as well.
http://cnsnews.com/news/article/here-israel-jerusalem-clinton-breaches-us-policy
RE: HILLARY CLINTON AND ISRAEL…
Paul Pillar’s excellent analysis in this article is helpful.
As Zachary Smith points out, this must be evaluated
in context.
In the first place Hillary Clinton is not now President
of the USA. Many of us have long been aware of
her unquestioning loyalty (no questions asked) to
Israel whatever its policies. She was after all a Senator
from New York State. Senators from states with large
special interests are well-known.to champion those
interests. A Senator representing North Dakota may
perhaps take a special interest in matters relation to
Native Americans if his state has many Native Americans
in it.
However, when a person becomes a powerful Secretary
of State and —at this point–a likely US President, one
is presented with prejudices which are truly frightening.
Combine this with H. Clinton’s warrior tendencies.
It should be noted that her husband Bill Clinton never
did Palestinians any favors, but H. Cliinton is not accountable
for her husband’s actions.
Hillary Clinton is not unique in her attitudes toward
Israel and Palestine among candidates for US President
in 2016.
All candidates of both US parties will come out on bended
knees in support of Israel now and forever. In most cases
the issue will be hardly mentioned at all.
Lest one think that AIPAC has been dead and buried by
the Supreme Court decision, note the Cardin provision
attached to the trade act now under consideration by
the US Congress. It prohibits support of BDS and
similar activities. Evidently Israeli’s have their own
definition of “democracy” which to them means that
decisions of the Israeli parliament, the Knesset, must
be forceably accepted by all world governments.
I have urged my Congressman to oppose the trade
agreement and in particular the Cardin provision which
among other things contradicts the US Constitution.
—-Peter Loeb, Boston, MA, USA
Nicely put, Alexander. I enjoyed the article as well. The US government would actually work well if the actions of members of the legislative branch were primarily motivated by the opinions and best interests of the constituents that they are supposed to represent (as envisioned by Hamilton, Madison et al). Alas, this does not seem to be the case regarding policy toward Iran, Israel, Syria, and Russia.
Dear Mr Pillar,
Thank you for another thoughtful article.
It is interesting to see the supreme court weigh in on this topic !
I find the ongoing dynamic tension between the Executive and Legislative branches of our government at this juncture in time very fascinating !
It always seemed to me that the founding fathers sought to divide government into many branches to in effect , decentralize power..having the good sense that any representative government would seek a check on unitary executive action (that a monarchy might have) out of a need for its survival as a “democracy” !
What seems quite natural is that the legislative branches would act as a curb on the Presidents power….especially and above all else the power to make WAR ! That is why the capacity to “declare” war rests with Congress not the Executive ! Which is all to the good !
What seems so contorted and bizarre in the case of the Iran Peace Process is here the behavior is reversed !
We have, in essence, an Executive that is trying to make PEACE through diplomacy,…and an entire Congress that is trying to stymie the process and push us toward WAR !
It is really quite unbelievable !
Given that the will of the American people is overwhelmingly in favor of a peaceful resolution to the issue…..the machinations of congress seem strangely and uniquely transgressive….like they are possessed by demons , or being extorted, or someone is holding a shotgun in the back room to the head of their daughter or something ?
Whatever that case may be, it is quite an unexpected twist in the behavior of the branches of our government !
have you not noticed this too?
It is a relevant analogy to say, “the machinations of congress seem strangely and uniquely transgressive….like they are possessed by demons , or being extorted, or someone is holding a shotgun in the back room to the head of their daughter or something”
AIPAC and other pro-Zionist forces hold the prospect of funding the opponents of any sitting elected US government official who does not support or bend to what is essentially Israel’s rule concerning anything related to Israel, regardless of the legality, hypocrisy or expense to the US public in treasure or military and civilian lives.
The Zionists method of control has been a matter factual history for decades starting at least since the Zionist machine’s ousting of Senator Paul Findley in the 1982 midterm election for refusing to sign onto whatever it was they wanted at the time.
Currently in his 90’s he’s written several books about his experiences and knowledge concerning Middle East and US affairs and the people(s) involved.
https://www.google.com/search?q=paul+findley&ie=UTF-8&oe=UTF-8&hl=en&client=safari#hl=en&q=paul+findley+US+senator+ousted+by+Israel+
BINGO! ALEXANDER.
They should have as much good sense regarding its survival as a Constitutional Republic. It is not a Democracy. Unfortunately, thanks to innattention, it is now closer to an Oligarchy.