THE SUPREME COURT on Monday heard arguments in a case about the birth of a child in the Holy Land. It had nothing to do with religion but was just as fraught with controversy.
The conflict arose in 2002 with the birth in Jerusalem of Menachem Zivotofsky. His parents are U.S. citizens, making him a U.S. national. Earlier that year, Congress had attached to a foreign affairs appropriations bill a provision that gave U.S. citizens born in Jerusalem the option of having their passports cite either Jerusalem or Israel as the place of birth. But when Menachem’s mother traveled to the U.S. Embassy in Tel Aviv to obtain a passport for her son, she was rebuffed. The United States, she was told, had never recognized Israel as having sovereignty over the city.
But what about the Jerusalem provision included in the funding bill? In a signing statement, President George W. Bush made clear his intention of defying the mandate, which he wrote would “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.” Menachem’s parents sued to have their son’s passport changed but lost their legal battles in D.C. federal courts. They took another shot Monday before the justices but again should not prevail.
The Supreme Court has long recognized that the president is the “sole organ” of the nation’s foreign policy. The Constitution bestows on the president the exclusive power to “receive ambassadors” and, by extension, to decide which foreign sovereigns will be recognized by the U.S. government. Congress breached this prerogative with enactment of the Jerusalem provision.
Congress should not be treated as a mere bystander on foreign policy matters. Lawmakers have an important role in shaping such policies through a number of means, including political pressure, the power of the purse, sanctions on foreign entities and the confirmation or rejection of the president’s choices for ambassadorships.
The Supreme Court is likely to focus only on the legal issues in the Zivotofsky case, but the matter cries out for a political solution. The Jerusalem provision is as provocative as it is unwise. It unnecessarily threatens to undermine an already difficult peace process. It is, in short, bad policy that should be repealed by Congress. Meanwhile, the justices should rule narrowly to nullify the provision without encroaching on Congress’s legitimate foreign policy role.