By THE EDITORIAL BOARDJUNE 8, 2015
To whom does Jerusalem belong?
The official American position on this thorny question is one of neutrality. No American president since the establishment of the state of Israel in 1948 has ever issued a declaration or official statement acknowledging any countrys sovereignty over the holy city.
This has been a prudent response to the most vexing and volatile and difficult diplomatic issue that this nation has faced for decades, as the United States solicitor general, Donald Verrilli, said during oral arguments in November in Zivotofsky v. Kerry, a long-running case on the power to recognize foreign governments that the Supreme Court decided on Monday.
By a vote of 6 to 3, the justices reaffirmed that this power rests exclusively with the president and struck down a provocative law Congress passed in 2002 to undermine the well-established position on the status of Jerusalem.
The law required the State Department, upon request, to put Israel as the place of birth on the passport of any American citizen born in Jerusalem. President George W. Bush signed the law, part of an appropriations bill, but refused to follow it, saying that it infringed on the presidents power to speak for the nation on this issue. President Obama has held the same line.
Shortly after the law passed, Naomi Zivotofsky, an American citizen in Jerusalem, gave birth to a son, Menachem. Ms. Zivotofsky and her husband, Ari, asked that Menachems passport list Israel as his place of birth. When the government refused, citing State Department policy, the Zivotofskys sued.
Justice Anthony Kennedy, writing for the courts majority, acknowledged the delicate subject at the heart of Mondays decision. Still, the nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. That decision, he wrote, is for the President alone to make.
The executive is in the best position to make that decisive, unequivocal judgment, Justice Kennedy reasoned, and foreign countries depend on that clarity in their relations with the United States.
The dissenting justices argued that designating Israel on a passport does not change American policy. The mere possibility that observers overseas might misperceive the significance of the passport law is irrelevant, Chief Justice John Roberts wrote.
Ari Zivotofsky and his son, Menachem, in Washington last fall. The boys passport listed his birthplace as Jerusalem, not Israel.
Supreme Court Backs White House on Jerusalem Passport DisputeJUNE 8, 2015
But this disingenuous argument ignores the central, unacceptable purpose of that 2002 law, which was explicitly to contradict the executive branchs policy regarding Jerusalem. In fact, its right there in the laws title: United States Policy With Respect to Jerusalem as the Capital of Israel.
Predictably, the law triggered more than the mere possibility of misperception. Palestinian officials formally complained that the new law damaged American involvement in the peace process, while residents in the Gaza Strip marched in protest, even after President Bush tried to reassure them that nothing had changed.
It would have been naïve to imagine any other reaction. As Justice Elena Kagan said during oral arguments, history suggests that everything is a big deal with respect to the status of Jerusalem.
Justice Antonin Scalia, invoking the threat of a monarchy, claimed that the decision gives the president too much power. But decisions about recognizing foreign states and their territorial claims have long been the province of the president for reasons of both common sense and necessity, as Justice Kennedy wrote. The court was right to keep them there
The law has been measured and the occupation is illegal and wrong, no matter how many accept the beliefs of the obtuse.