Don’t Misread SCOTUS Jerusalem Decision

Today's U.S. Supreme Court decision in Zivotofsky v. Kerry had little to do with Jerusalem and everything to do with separation of powers.  

At issue was the President's preeminence in foreign policy, not whether the United States considers Jerusalem Israel's capital but who makes that decision, the Congress or the executive.

By a vote of 6-3 the Court ruled unconstitutional a 2002 law that allowed American parents of children born in Jerusalem to have their children's US passports state they were born in Israel.  All three of the court's Jewish members were in the majority.

As a result passports can show Jerusalem as the place of birth but not identify the country.

Now there will be those Obama haters who will blame him for this decision, although he had nothing to do with it or the original law.  That was passed 13 years ago when George W. Bush was president.  It was an amendment to a larger appropriations bill that although he signed it, Bush said he would not enforce the provision because it “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs.”

That is the position upheld by the Supreme Court. 

Justice Anthony M. Kennedy, writing the majority opinion, said the Constitution gives the president exclusive authority to make such policy determinations. 

 Chief Justice John Roberts, in the dissent, said, “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.”

The original amendment was another example of Jerusalem being exploited as a partisan political football by one party trying to embarrass the other while pandering to wealthy contributors and voters.

Several American Jewish organizations expressed "disappointment" with the ruling and one said it couldn't see how changing the passports would "impinge on future negotiations." That's what they said, but they know that's not true.

As I noted, the ruling was not about Israel but about presidential prerogatives.

Now, with the Court affirming his constitutional authority, the president could change the passports on his own. The Palestinians acknowledge West Jerusalem is Israeli and lay claim to the city's eastern sector for their capital.  The president could order passports of American citizens born in the western part of the city to identify Israel as their country of birth.  But he can't and he won't, because the first to object, and rightly so, will be the government of Israel, which will accuse the American government of dividing their capital and giving half of it away to the Palestinians. It's got to be all or nothing, and for now it is nothing.

Bottom line:  as with the location of the U.S. Embassy, there will be no change until there is a peace agreement and the two sides settle the issue on their own.