Pass­port rul­ing but­tresses Obama

The Supreme Court de­cides the ex­ec­u­tive of­fice has ‘ex­clu­sive power’ to rec­og­nize for­eign gov­ern­ments.

Los Angeles Times - - THE NATION - By David G. Sav­age david.sav­age@la­times.com Twit­ter: @DavidGSav­age

WASH­ING­TON — The Supreme Court on Mon­day bol­stered the con­sti­tu­tional role of the pres­i­dent, and not Congress, in set­ting the na­tion’s for­eign pol­icy, declar­ing the ex­ec­u­tive of­fice has the “ex­clu­sive power” to rec­og­nize for­eign gov­ern­ments and ne­go­ti­ate sen­si­tive dis­putes.

The rul­ing struck down a never-im­ple­mented 2002 law that at­tempted to give Amer­i­can par­ents the right to have “Is­rael” listed as the birth­place of a child born in Jerusalem.

By a 6-3 vote, the jus­tices agreed with Pres­i­dents Obama and Ge­orge W. Bush that this mea­sure in­fringed on the power of the pres­i­dent and his sec­re­tary of State to re­solve the long-run­ning dis­pute over the sta­tus of the an­cient city.

Both Is­raelis and Pales­tini­ans claim Jerusalem as their cap­i­tal, and U.S. pol­icy has long held that of­fi­cially iden­ti­fy­ing the city as part of Is­rael would hin­der ne­go­ti­a­tions be­tween the par­ties.

The rul­ing is a de­feat for the par­ents of Me­nachem Ziv­otof­sky, who is now 12. They had sued un­der the law to have his pass­port list his birth­place as “Jerusalem, Is­rael.”

Be­yond the nar­row dis­pute at is­sue, the court’s opin­ion was a strong en­dorse­ment of pres­i­den­tial power at a time when Repub­li­cans are in­creas­ingly crit­i­ciz­ing Obama for by­pass­ing Congress and ex- ceed­ing his author­ity, in­clud­ing on for­eign mat­ters such as the pending Iran nu­clear deal.

The United States has not had for­mal diplo­matic re­la­tions with Iran since 1980, but Obama hopes to com­plete a deal un­der which the Is­lamic Repub­lic agrees to limit its nu­clear pro­gram in ex­change for U.S. and in­ter­na­tional sanc­tions be­ing eased against Tehran.

In March, while the pass­port case was pending, Sen. Tom Cot­ton (R-Ark.) — joined by 46 Se­nate Repub­li­cans wor­ried that the deal would be too soft on Iran — sent an open let­ter to Iran’s lead­ers. It em­pha­sized the cru­cial role of Congress in ap­prov­ing in­ter­na­tional agree­ments and noted that Obama would be leav­ing of­fice in two years.

“It has come to our at­ten­tion,” the let­ter stated, “that you may not fully un­der­stand our con­sti­tu­tional sys­tem.”

Although Mon­day’s rul­ing will have no di­rect ef­fect on the talks, Jus­tice An­thony M. Kennedy’s opin­ion em­pha­sized the pres­i­dent’s prime role in for­eign pol­icy.

“The pres­i­dent has the sole power to ne­go­ti­ate treaties, and the Se­nate may not con­clude or rat­ify a treaty with­out pres­i­den­tial ac­tion,” he wrote. “Congress, by con­trast, has no con­sti­tu­tional power that would en­able it to ini­ti­ate diplo­matic re­la­tions with a for­eign na­tion…. Put sim­ply, the na­tion must have a sin­gle pol­icy re- gard­ing which gov­ern­ments are le­git­i­mate in the eyes of the United States and which are not.”

To be sure, the pres­i­dent’s power is not “un­bounded,” he said, and Congress need not fund or sup­port the pres­i­dent’s ini­tia­tives. But when it comes to rec­og­niz­ing for­eign gov­ern­ments, the na­tion must speak with one voice, Kennedy said. “That voice must be the pres­i­dent’s.”

In dis­sent, Chief Jus­tice John G. Roberts Jr. called the de­ci­sion the first of its kind. “Never be­fore has this court ac­cepted a pres­i­dent’s de­fi­ance of an act of Congress in the field of for­eign af­fairs,” he said. He would have up­held the law, and Jus­tice Sa­muel A. Al­ito Jr. agreed.

Jus­tice An­tonin Scalia read part of his sep­a­rate dis­sent in court. “The tragedy of to­day’s de­ci­sion is not its re­sult,” he said, “but the prin­ci­ple that pro­duces this re­sult.” He said the Con­sti­tu­tion di­vided power be­tween the pres­i­dent and Congress, both in “for­eign pol­icy and … for just about ev­ery­thing else.” The court’s opin­ion “will sys­tem­at­i­cally fa­vor the pres­i­dent at the ex­pense of Congress,” he said.

Kennedy’s opin­ion in Ziv­otof­sky vs. Kerry spoke for Jus­tices Ruth Bader Gins­burg, Stephen G. Breyer, So­nia So­tomayor and Elena Ka­gan. Jus­tice Clarence Thomas con­curred with the out­come, but did not join Kennedy’s opin­ion.

The Anti-Defama­tion League said it was dis­ap­pointed with the rul­ing. “It is sad and un­for­tu­nate that Is­rael — as a sovereign state — is the only coun­try in the world whose cap­i­tal comes un­der such scru­tiny,” Abra­ham Fox­man, the ADL’s na­tional direc­tor, said in a state­ment.

The Ziv­otof­sky case took an un­usu­ally long time for the court to re­solve. It posed sev­eral dif­fi­cult ques­tions, in­clud­ing whether the pres­i­dent could sign a mea­sure into law and then refuse to abide by it.

When Bush signed the For­eign Re­la­tions Au­tho­riza­tion Act in 2002, he is­sued a “sign­ing state­ment” as­sert­ing that he would not fol­low the pro­vi­sion in­volv­ing pass­ports for U.S. cit­i­zens born in Jerusalem.

Upon tak­ing of­fice, Obama, along with the State Depart­ment, con­tin­ued that pol­icy. Three years ago, when the high court was first asked to hear the case, the court was di­vided and un­able to is­sue a fi­nal rul­ing. The case was sent back to a U.S. ap­peals court in Wash­ing­ton, which af­firmed its de­ci­sion in fa­vor of the State Depart­ment.

Be­cause a law had been struck down as un­con­sti­tu­tional, the court voted to take up the case again. Ar­gu­ments were heard in early Novem­ber.

The Con­sti­tu­tion does not di­rectly ad­dress the ques­tion, but Kennedy said pro­vi­sions al­low­ing the pres­i­dent to “make treaties” and “ap­point am­bas­sadors,” com­bined with the na­tion’s early his­tory, shows the “power to rec­og­nize for­eign states re­sides in the pres­i­dent alone.”

Carolyn Kaster As­so­ci­ated Press

THE RUL­ING is a de­feat for Me­nachem and Ari Ziv­otof­sky, seen last fall. The fam­ily sued to have the boy’s pass­port list his birth­place as “Jerusalem, Is­rael,” but iden­ti­fy­ing the city as part of Is­rael is against U.S. pol­icy.

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