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…