Refusing to acknowledge that Jerusalem is in Israel has drained Obama of power

Former Supreme Court Justice Robert H. Jackson got it right when, decades before Zivotofsky passport case, he said a president’s power reaches its lowest ebb when he contravenes will of Congress.

Ha’aretz

It would be hard to sugarcoat the U.S. Supreme Court decision about Jerusalem. The Supreme Court concluded that Congress lacks authority to require that an American born in Jerusalem be issued a passport saying he was born in Israel. It declared that this prerogative belongs solely to the president.

Yet it may turn out that the Obama administration has boxed itself in with representations it made in the course of winning the case. It stressed the sensitivity of Jerusalem so much that it is going to be hard put to swing behind an effort by the Palestinian Arabs to gain a non-negotiated state that includes Jerusalem, or even part of it, as a capital.

This insight was first offered in a column by the editor of Jewish Current Issues, Rick Richman, one of the shrewdest scribes on the beat. He noted reports that France is planning to seek a Security Council resolution to establish in Judea and Samaria a Palestinian Arab state with a capital in Jerusalem. My own guess is that the Obama administration would like nothing better than to find a way to back the French scheme, or another means of adding a Palestinian state to U.S. President Barack Obama’s legacy.

Yet if the Obama administration were to support – or even countenance – such a strategy, Richman points out, it would be violating “multiple representations made multiple times” to the Supreme Court in the course of litigating the so-called Jerusalem passport case. There is no law against the Obama administration’s changing its tune, but it would throw its betrayal of Israel’s own claim to Jerusalem into particularly sharp relief.

U.S. Secretary of State John Kerry certainly made a megillah of the Jerusalem question in the case of 12-year-old Menachem Zivotofsky’s passport – starting, as Richman points out, in the first paragraph of his main brief. “The status of Jerusalem is one of the most sensitive flash points in the Arab-Israeli conflict,” Kerry argued. “Since 1948, when President Truman recognized the State of Israel, the United States’ consistent foreign policy has been to recognize no state as having sovereignty over Jerusalem.”

America’s policy, Kerry rattled on, “reflects the Executive’s assessment that ‘[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.’”

Kerry added: “The Executive likewise does not recognize Palestinian sovereignty in Jerusalem.”

It is not my intention to suggest that the administration’s formulation is satisfactory to those of us who think Jerusalem belongs to the Jewish state. Nor is it satisfactory to Congress, which in 1995 passed a law announcing a “statement of the policy of the United States” that Jerusalem “should remain an undivided city” that is “recognized as the capital of the State of Israel” and that the U.S. Embassy in Israel should be established there.

But it is my intention to suggest that by taking such a hard line against even the slightest act acknowledging that Jerusalem is in Israel, the administration has compromised its ability to move against Israel at the United Nations. To top it off, it has left Obama’s power in the matter at “the lowest ebb.”

That is a phrase that was quoted in the dissenting opinion in Zivotofsky v. Kerry, which was issued by the chief justice of the United States, John Roberts. He was quoting an earlier justice, Robert H. Jackson, who in 1952 issued a famous opinion warning that when a president “contravenes the express will of Congress” his power reaches its “lowest ebb.”

Jackson went on to write that the president’s powers are the fullest when he has Congress with him. When Congress fails to speak one way or another, Jackson wrote, the president is in a “zone of twilight.” His main point was that only with the “express or implied” authorization of Congress can a president be said to “personify the federal sovereignty.”

So Obama finds himself in a predicament – unable to personify federal authority on the most sensitive question in the Middle East. It’s tragic, because one can imagine lots of ways Zivotofsky could have been accommodated without making a federal case out of his passport request. One could argue that even those who yearn for a two-state solution would have been better off had a compromise been struck with Zivotofsky, who as a newborn seemed to have more wisdom than all the sages of the State Department.