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“Jerusalem will remain the capital of Israel and it must remain undivided,” Barack Obama told the audience at the 2008 annual policy conference of the American Israel Public Affairs Committee (AIPAC).
But now as president, Obama is put in the uncomfortable position of insisting on the enforcement of what has been American policy on the city: that it is not only not recognized as the capital of Israel, but is effectively not considered to be part of Israel at all, as far as official records are concerned. That policy—and its seeming irreconcilability with what presidents say when they are candidates—will now come before the Supreme Court.
Just as surprising, perhaps, is that the government will be up against an 8-year-old boy in the case.
The issue began when the American parents of Menachem Binyamin Zivotofsky, a young boy born in Jerusalem, petitioned the State Department to have Menachem’s passport say “Jerusalem, Israel”—as would be the case if the American government recognized as a political and practical reality that Jerusalem is the capital city of the sovereign state of Israel.
As the Washington Post reported: “ ‘The status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,’ the government said in its brief to the court. It is not one in which the United States has been willing to choose sides.”
But in actuality, the United States has in fact been willing to choose sides. The Palestinians have argued that they should get to sign off on any recognition of the city’s sovereignty. American diplomats prefer this side of the argument, and presidents have as well. In 2002, Congress passed a provision in a larger foreign relations bill that cleared the way for families like the Zivotofskys to request that “Israel” be put on their passports in situations like Menachem’s. President George W. Bush affixed a signing statement reiterating that American policy toward Jerusalem has not changed.
The Supreme Court case then will center on the question of executive versus congressional power on such an issue, according to John O. McGinnis, professor of constitutional law at Northwestern University who served as deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice from 1987-1991.
The court, McGinnis said, will first determine whether it is a political question, i.e. whether the court should decide who should decide such a question. If they rule that it is a political fight between the executive and legislative branches, they will leave them to that fight.
“Congress has its weapons—refusing to confirm people, not funding certain things—to force the executive to comply,” McGinnis said. “The executive can resist.”
In such a case, the plaintiff will “lose” in that the court will not even make the decision, and the president’s standoff with Congress will continue. But the second possibility is that the court will rule that it is, in fact, a constitutional issue and thus that they can decide who is right.
McGinnis laid out the basics of the two arguments. The executive branch will argue that “the Constitution has a clause saying the president shall receive ambassadors. And from that, some might interpret, it’s really up to the president to decide recognition of nations. And you might say well, in deciding recognition of nations you’ve got to decide what those nations are and what their borders are. When you receive an ambassador from somewhere, you decide, well: where is that somewhere?”
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