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Zivotofsky decision recognizes Congress’ right to determine American foreign policy

The U.S. Supreme Court has ruled in Zivotofsky v. Kerry that Obama can decree that Jerusalem isn’t in Israel.
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June 9, 2015

The U.S. Supreme Court has ruled in Zivotofsky v. Kerry that Obama can decree that Jerusalem isn’t in Israel. But while friends of Israel lost this battle, they may have won, if not the war, at least a larger battle.

Jewish organizations have been expressing their disappointment with the decision. And they’re right: the refusal to recognize Israeli sovereignty over Jerusalem is a refusal to face facts. In addition, pretending that even western Jerusalem is not Israeli, even though Israel has controlled it since 1948, encourages the Palestinian fantasy that Israel is temporary.

Thus, the negative political significance of the judicial decision is clear. But most commentators have missed its larger constitutional significance. The decision did not say that the president has sole control over American foreign policy, as some commentators have stated. Quite the opposite, in fact.

The Court’s decision is a narrow one: A particular snippet of the Constitution, Article II’s “receive Ambassadors” clause, gives an exclusive recognition power to the executive branch. Thus, the president decides whether an entity has the attributes of statehood; which group or regime claiming to be the government of a country is actually its government; and what territory that government controls—for instance, whether Israel is the sovereign in Jerusalem.

That’s a significant power. But it’s just a small slice of foreign policy. And the Court said Congress has an important role to play in foreign affairs.

Many people (including many presidents) have believed that the president is the sole maker and authority in foreign affairs. The main justification for this view is that the United States must “speak with one voice” in dealing with foreign powers. And there are a few Supreme Court cases that can be read to support this view.

But in Zivotofsky v. Kerry the Court repudiated this commonly-held notion that the president is the sole architect of American foreign policy. On the contrary, the Court emphasized that constitutionally, Congress makes the laws—even in foreign policy; and the president must faithfully execute the laws—even in foreign policy.

As Justice Anthony Kennedy wrote for the Court: “Although the President alone effects the formal act of recognition, Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself. . . . All this, of course, underscores that Congress has an important role in other aspects of foreign policy, and the President may be bound by any number of laws Congress enacts.”

So, for example, Congress could designate the Palestinian Authority a terrorist organization; or declare that America does not recognize a Palestinian “right of return” to Israel, but only to a Palestinian state.

In the past, Congress may have been content to leave such matters to the president, when it was plausible to suppose foreign policy was his personal, particular preserve. But that is plausible no more. Whether Congress will stretch its limbs and exercise all the foreign policy power it has is an open question. (And whether Congress will always be the more pro-Israel branch of government is doubtful.) But now it has the Supreme Court’s permission, so to speak, to do so.

So President Obama is enjoying a political victory. But it is a limited one, and may be a pyrrhic one, as the Zivotofsky opinion has told him and all future presidents they can’t put a sign on the White House fence that says: “Foreign policy made here—Congress keep out.”

Attorney Paul Kujawsky wrote several amicus briefs in the Zivotofsky litigation.

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