The U.S. Supreme Court struck down U.S. Congressional legislation last week that would have allowed American citizens born in Jerusalem, Israel, to list on their passports Jerusalem as their birthplace. The focus of this case involved the family of Menachem Zivotofsky (Zivotofsky vs. Kerry), from the Israeli city of Bet-Shemesh, who sought to list his birthplace (Jerusalem) Israel on his American passport. The controversy that ensued required the intervention of the Supreme Court. According to the majority ruling of the Supreme Court (6-3) the U.S. Congress exceeded its authority when it passed legislation in 2002 permitting the listing.
The ruling supports the Executive branch of the U.S. government at the expense of the Legislative branch. The Obama administration refuses to recognize Israel’s sovereignty over its historical capital-Jerusalem, until such time when the Israelis and Palestinians have reached a final peace treaty through negotiations. To be fair, despite promises by various U.S. presidential candidates to move the U.S. embassy to Jerusalem (from Tel Aviv) and recognize Jerusalem as Israel’s official capital, no executive action has ever been taken.
The prospects of direct negotiations between Israel and the Palestinian Authority (PA) based in Ramallah are dim at best. Mahmoud Abbas, President of the PA has moved to create a unity government with Hamas, which openly rejects negotiation with or recognition of Israel. At the same time, Abbas has sought to avoid negotiations with Israel by seeking Palestinian recognition at the United Nations.
Justice Anthony Kennedy, who wrote the majority opinion, pointed out that “over the last 100 years, there has been scarcely any debate over the President's power to recognize foreign states.” Kennedy elaborated further that “Congress wanted to express its displeasure with the President's policy, by among other things, commanding the Executive to contradict his own, early stated position on Jerusalem. This Congress cannot do.”
Expressing the minority view Chief Justice John Roberts asserted that “Today's decision is a first: Never before has this Court accepted a President's direct defiance of an Act of Congress in the field of foreign affairs.” Roberts added, “the statute at issue does not implicate recognition" but "simply gives an American citizen born in Jerusalem the option to designate his place of birth as Israel for the purposes of passports and other documents.”
Justice Antonin Scalia, who along with Roberts, and Justice Samuel Alito represented the minority opinion said, “The law at issue merely requires the State Department to list a citizen's birthplace as Israel, and does not require the President to make any other kind of legal commitment.”
Justice Elena Kagan, who is Jewish, sided with the State Department at oral arguments. She stated that, “History suggests that everything is a big deal with respect to the status of Jerusalem. And right now, Jerusalem is a tinderbox because of issues about the status of and access to a particular holy site there.” Justice Scalia retorted that, “Congress is entitled to do what is authorized under the Constitution and the fact that the State Department doesn't like the fact that it makes the Palestinians angry is irrelevant.”
Beyond the legal arguments, the Supreme Court decision means that the President (Obama) can ignore an act of Congress, as well as the reality surrounding Jerusalem, and the facts on the ground. A. that Jerusalem is a Jewish majority city, and the heart of the Jewish identity from time immemorial. B. Jerusalem has been the capital of Israel since 1949, and it is in Jerusalem where all government offices are located, and its parliament (Knesset) resides.
The court decision and the U.S. Executive branch policy regarding Jerusalem runs contrary to the pledges of Israeli prime ministers and governments who have pledged that Jerusalem will never be divided again. U.S. administrations have held out hope that the Palestinians will gain a part of the city, despite the fact that Jews live in both the western and eastern Jerusalem neighborhoods.
The court’s decision will compound the difficulty of finding a peaceful resolution to the Israeli-Palestinian conflict. In addition to the Palestinian demand of the “Right of Return” of millions of Palestinians into Israel, a proposition Israel would never accept, the Palestinians will now demand a presence in Jerusalem, in what will likely amount to a divided Jerusalem.
Abe Foxman, head of the Anti-Defamation League (ADL), in expressing his dismay over the Supreme Court ruling issued the following statement: “The question for the Supreme Court in this case involved a simple and ministerial act - whether or not U.S. citizens born in Jerusalem should be allowed to list their birth place as Israel. The answer to that should have been an easy yes. And the Court did not have to issue a sweeping decision about executive power to reach that conclusion. However, now that the Court has issued a ruling emphasizing the role of the Executive in recognizing foreign nations, it is time for this administration to step up. How long will the U.S. government continue to have this hypocritical and myopic approach?”
The Conference of Presidents of Major Jewish organization opined that “We do not believe that Jerusalem-born American citizens having Israel on their passport would impinge on future negotiations or compromise the role of the U.S.”
In Israel the decision of the Court elicited strong reactions as well. Israeli Minister of Absorption MK Zeev Elkin, who is also the Minister with the Jerusalem portfolio, called on the U.S. Congress to adopt new legislation that would recognize the simple fact that Jerusalem is the foundation stone of the Jewish heritage, as well as the Christian one, and that a united Jerusalem is and will continue to be the capital of the Jewish State of Israel. Jerusalem, Elkin said, is the very heart of the Land of Israel and its eternal capital.
Former Israeli ambassador to Washington, MK Michael Oren (from the Kulanu party, a key coalition partner of Netanyahu’s Likud government) said that the Court’s decision was a direct assault on Israel’s sovereignty, and on the U.S.-Israel alliance. Oren pointed out that while the Court gave President Obama the exclusive authority to decide on Jerusalem, the President used his authority to deny recognition of Jerusalem as Israel’s capital. He added that he gave up his U.S. citizenship, but his daughter Leah is still maintaining hers, and she was born in Jerusalem, Israel, despite the State Department refusal to recognize the word “Israel.”
In the meantime, the 12-year old Menachem Zivotofsky, oblivious to the legal debate on the separation of powers, reacted to reporters’ questions on the case by saying, “I am an Israeli, and I want people to know that I am glad to be an Israeli.”
It is apparent that the pledges by U.S. presidential candidates to recognize Jerusalem as Israel’s official and only capital remain, at best, hollow words. The U.S. Congress did its best in 2002, but the White House is far more concerned with appeasing Mahmoud Abbas, and the Arab and Muslim world, than doing the right thing - supporting the just cause of a loyal ally. The Obama administration and the Supreme Court have now emboldened Palestinian Authority Chief Negotiator Saeb Erekat to hail the Court decision, and state that “Jerusalem is an occupied territory,” thus negating history and reality.
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