Obama, Jerusalem, US law: the Court was right

On Monday, June 8, 2015, the US Supreme Court ruled that the US Congress had overstepped its authority in 2002 when it had passed a law that said, “For 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 [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel” (“Supreme Court rules no Israeli sovereignty over Jerusalem for US passports”, rt. comusa, June 8, 2015).

The Supreme Court ruled 6-3 to overturn this law. Its reasoning was simple: the Constitution gave to the President alone the exclusive authority to determine US foreign policy (ibid)—not Congress.

The Court decision focuses on the issue of who is responsible for determining US foreign policy. If it’s Congress, then they have the right to instruct that ‘Jerusalem, Israel’, be written as a birthplace into passports of American citizens born in Jerusalem, Israel. But if that responsibility belongs exclusively to the President, then he has that power.

Among the three Justices who dissented, Chief Justice John Roberts declared that birthdates on passports are not foreign policy. He said, “The annals of diplomatic history…record no examples of official [US] recognition accomplished via optional passport designation” (ibid). His losing argument was that place-names on a passport have nothing to do with who is responsible for determining US foreign policy.

I argue that both positions are right and because of that, the US Supreme Court was correct to rule as it did. What’s shocking here isn’t that the Court made this ruling against Israel; the shock is what the ruling reveals about US foreign policy.

I agree with Chief Justice Roberts that a place-name on a passport is not foreign policy. But Justice Anthony Kennedy, who wrote for the majority, is also right—because Jerusalem's status is in fact an existing US foreign policy issue--and because of that fact, it is only the President who has the authority to decide what gets put into a passport, just as Justice Kennedy argued (see below).


That’s where the surprise is.

The child whose passport request started this legal wrangle in 2002/3 was born in West Jerusalem. West Jerusalem has never been in dispute. It’s East Jerusalem that, in English at least, the Palestinian Authority (PA) claims as its capital (Patrick Goodenough, “Jerusalem: 'Eternal City,' Says Obama; 'Ancient Capital,' Says Netanyahu, cnsnews, March 20, 2013)). Many know that the U.S. government could continue to maintain that the status of East Jerusalem is to be negotiated while at the very same time stating that West Jerusalem is located in Israel – and is its capital and therefore the appropriate location for the U.S. Embassy (ibid). Indeed, many feel the US could continue to do that without conflict with the published position of the PA (ibid).

Nevertheless, we see from this Court ruling that this is not the case. This ruling reveals, clearly and forever, that it is US foreign policy that no part of Jerusalem is part of Israel. Therefore, it doesn’t matter where in Jerusalem the plaintiff was born: so far as US policy is concerned, Jerusalem isn’t Israel.

This is why, the day after the ruling, a State Department spokesperson refused to name West Jerusalem as the capital of Israel (Adam Kredo, “Obama Admin Won’t Label Jerusalem Israel’s Capital”, Washington Free Beacon, June 9, 2015). This was a surprise because calling West Jerusalem the capital of Israel was a “non-controversial claim recognized across the world, even by Palestinians” (ibid).

The surprise was, this ‘no Jerusalem for the Jews’ was official US foreign policy. No one appears to have noticed that before.

Now, it was out in the open.

Can you imagine what a gift this is to Arabs who claim that Jews have no right to Israel? This policy rips out the heart of Israel.

Jerusalem is no afterthought to Jews. It’s where the Holy Temple was located. It’s where Jews believe the Holy Temple will once again be. But, apparently, the US has decided that isn’t taking any chances of that happening: its policy is to consider all of Jerusalem as out of Jewish hands.

It’s strange. for years, the Obama administration has faced claims that it was slowly eroding Jewish sovereignty over Jerusalem (ibid). The administration has resisted such claims.

American Jews have defended Obama. They have sided with him. They have argued that Obama is good for Israel.

Just last month, Obama put on a kippa (small head-cap) and spoke before a Jewish audience in a synagogue (Josh Seigel, “At President’s Synagogue Speech, American Jews Defend Obama’s Support to Israel”, The dailysignal, May 22, 2015). The President assured his audience that he supports Israel (ibid). His audience lapped it up. They loved him (ibid).

Obama called himself “an honorary member of the tribe’ (ibid). He said her had Israel’s back (ibid).

But we now see he isn’t an honorary member of anything Jewish. At a time when the world clamours for Israel’s neck to be wrung, he doesn’t have Israel’s back. Indeed, he’s right there at the front of the mob to claim, ’Jerusalem isn’t yours!’