Hussein Ibish

Will SCOTUS let Congress dictate US foreign policy?

The Supreme Court's ruling on Jerusalem will determine the future of US foreign policy-making.

US Supreme Court. (AFP/Getty Images/Alex Wong)

With Jerusalem smoldering, the United States Supreme Court is set to rule on a case that could have profound implications not only for the status of that city in terms of American law and policy, but also for the relationship of different branches of government in the American political system as a whole. Indeed, it has the potential of completely restructuring the foreign policy-making process in the United States, and not for the better.


The lawsuit, Zivotofsky v. Kerry, No. 13-628, seeks to enforce a 2002 law that would compel the State Department to list “Israel” as a place of birth on American passports as opposed to "Jerusalem" for those Americans born in Jerusalem who request it. The Zivotofsky family asked the State Department to list “Israel” as the birthplace of their son, Menachem, who was born in Jerusalem shortly after the law was passed.

The Act in question holds that "[f]or the purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel." It does not, strikingly, make any effort to define what, precisely, constitutes Jerusalem, despite the fact that there have been several different boundaries defining the city's geographical definition in the 20th century alone. 

At the Supreme Court hearing on Monday, Solicitor General Donald B. Verrilli Jr., speaking on behalf of the government, said the case was “the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades.” That's no exaggeration. Last year on this site I looked in detail at the international legal and diplomatic implications of the case.


The legal conundrum remains the same. But the political context has only intensified, given both the unusual levels of public acrimony between Washington and Tel Aviv over Israeli settlement policies in and around occupied East Jerusalem, and the extremely tense situation on the ground between Palestinians and Israeli occupation authorities.


Some observers are even going so far as to call the situation on the ground a "silent intifada," or a "Jerusalem intifada." Putting aside the fact that both of these phrases are oxymorons — to really be a politically significant uprising, an intifada can hardly be "silent," and to rise to the level of a generalized uprising, unrest can hardly be restricted to Jerusalem, but rather must spread at least into the West Bank if not all of the occupied Palestinian territories — they do accurately gauge the highly volatile and combustible political situation on the ground.


This, apparently, isn't lost on the justices.


During the hearing, Justice Elena Kagan responded to claims by the plaintiff's counsel that changing the wording regarding birthplace on American passports as they requested wouldn't signal a change in American policy and was relatively insignificant by observing, “Can I say that this seems a particularly unfortunate week to be making this kind of ‘oh, it’s no big deal’ argument? I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox."


Justice Antonin Scalia also seemed to be considering the issue in its diplomatic and political context, albeit in a very facile way, by observing that, “If it is within Congress’s power, what difference does it make whether it antagonizes foreign countries? The fact that the State Department doesn’t like the fact that it makes the Palestinians angry is irrelevant."


Even the Solicitor General, speaking on behalf of the executive branch of government, urged the nine "Supremes" (a frequent nickname for the Supreme Court justices that rather makes them sound like a female vocal group from the Motown era) to consider the case in its diplomatic and political context. He urged them to bear in mind that, “The nations in the region, and, frankly, people around the world and governments around the world scrutinize every word that comes out of the United States government and every action that the United States government takes in order to see whether we can continue to be trusted as an honest broker who could stand apart from this conflict and help bring it to resolution.”


But ultimately the case is not about politics or policies, or at least it certainly shouldn't be. It is about the constitutional division of power that renders the American system coherent. They may be enjoying a rare foreign policy conversation, but the justices certainly know that the case is about the separation of powers, and that, ultimately, they can only really rule one way.


As Justice Samuel A. Alito Jr. correctly put it at the hearing, “Our decision isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.” Instead, it must and will be based on how the Supreme Court interprets the relative roles of the legislative and executive branches of the American government regarding foreign policy.


There can be no doubt that, contrary to the claims of the plaintiff, the designation of a birth in Jerusalem as having taken place in Israel is, in fact, a major foreign policy statement. It can only be interpreted as implying that the United States either agrees that Jerusalem is in Israel, or doesn't object to that designation, when, in fact, consistent American policy for over 60 years has held that Jerusalem's status remains to be determined. The real question the Court must answer is whether or not Congress has the power to legislate foreign policy.


Historically the answer to this question has almost always been definitely not. Foreign policy has been strictly held to be the provenance of the executive branch, with very wide discretion in its conduct given to the president.


The two most obvious exceptions don't suggest anything relevant for this case.


Congress does have the right to withhold funding from any policy it does not wish to fund, as it has absolute power over the nation's purse strings. Congress did this with regard to funding the Nicaraguan Contras in the 1980s. That set the stage for the Iran-Contra scandal when the Reagan administration sought to circumvent this funding crisis and still funnel funds and supplies to the Contras through secret weapon sales to Iran in exchange for the release of American hostages in Lebanon.


Congress also, theoretically, has the exclusive prerogative of declaring war. However, Congress has not formally declared any war since the Second World War for a variety of significant reasons. The speed at which international relations move now suggests that the executive needs broad leeway in conducting military actions without congressional approval. Moreover, Congress's role in declaring war increasingly became an anomaly that many felt could potentially throw the rest of the system into sudden disarray at the country's expense. While many have bemoaned the de facto loss of this power by the legislature and to the benefit of the executive, national security concerns have consistently won the day for the White House.


Congress also has the power to "advise and consent" on treaties and other such commitments, which can have a major impact on foreign policy, and even its ability to confirm or reject cabinet-level appointees and other officials in the executive branch gives it some additional input and leverage. But overall, the American system and its logic strongly dictates that foreign policy (including domestic arrangements involving immigration) is otherwise very strongly reserved to the White House and not the Congress.


Moreover, none of these exceptions seem relevant to the questions raised by Zivotofsky v. Kerry.


When he signed the 2002 law in question, President George W. Bush promulgated one of his famous "signing statements." It specifically objected to the relevant part of the Act, noting that "Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. US policy regarding Jerusalem has not changed."


Because of the power of these arguments in the logical structures underlying the separation of powers that regulates relations between different branches of the American government, it's almost unthinkable that the Court would actually rule in favor of the plaintiffs in this case. A ruling on behalf of the plaintiffs, forcing the President to yield to Congress on a core matter of fundamental American foreign policy, would be troubling and strange indeed.


One ought to be able to confidently expect the decision to uphold the basic constitutional arrangements that are being challenged in Zivotofsky v. Kerry, the plaintiffs' attorney's denials notwithstanding. Indeed, we should expect it. After all, if the Court rules on behalf of the plaintiffs and orders the executive branch to comply with Congress' dictate regarding US foreign policy on Jerusalem, Pandora's box will well and truly have been opened.


The Supreme Court (the judicial branch) will, in effect, have granted Congress (the legislative branch) authority to dictate through legislation granular and detailed matters of foreign policy to the presidency (the executive branch). Congress can be expected to understand this and to exercise its new powers with considerable relish and abundant audacity, particularly if the White House and legislature are held by different parties, as they very often are (and undoubtedly will be after today's midterm elections, with Republicans poised to hold the House of Representatives and seize control of the Senate).


The entire process of making and, ultimately, even conducting foreign policy will be fundamentally transformed. And not for the better. What's at stake could hardly be more significant or far-reaching in terms of constitutional modalities and policy-making processes. This little case, as the plaintiffs present it, has the potential to maintain the present system or completely overthrow it. The Supreme Court undoubtedly understands that. Stay tuned for a fascinating and exceptionally important ruling by late June of next year.


Hussein Ibish is a columnist at NOW and The National (UAE). He is also a senior fellow at the American Task Force on Palestine. He tweets @Ibishblog

The Supreme Court will rule on Zivotofsky v. Kerry, a controversial case on designating Jerusalem as "Israeli" on US passports. (AFP/Getty Images/Alex Wong)

What's at stake could hardly be more significant or far-reaching in terms of constitutional modalities and policy-making processes.