Diplomat in chief
The Supreme Court on Monday handed President Obama — and his successors — a significant and deserved victory when it ruled that recognizing a foreign government is the “exclusive” province of the executive branch. By a 6-3 vote, the justices struck down a provision in a law passed by Congress in 2002 that requires the State Department, if requested, to issue a passport designating “Israel” as the birthplace of a U.S. citizen born in Jerusalem. Both the George W. Bush and Obama administrations had declined to enforce the law.
Lawyers for 12-year-old Menachem Zivotofsky, who was born in Jerusalem of American parents shortly after the law was passed, had argued that complying with it wouldn’t amount to official U.S. recognition of Jerusalem as the capital of Israel. But, as Justice Anthony M. Kennedy noted in his majority opinion, the section of the law that contains the passport directive is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.”
That language reflects the long-standing view of many in Congress that Jerusalem is Israel’s capital, a position successive presidents of both parties have declined to endorse on the grounds that the final status of the city must be negotiated “in consultation with all concerned.”
The passport provision, Kennedy concluded, infringed on the president’s exclusive authority to recognize foreign governments. That power, he said, was rooted in the text of the Constitution (including a provision saying that the president “shall receive ambassadors”), in historical practice and in “functional considerations,” notably the fact that this nation “must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not.”
This case has attracted public attention because it dramatizes a perennial difference of opinion between the White House and Congress not only about the status of Jerusalem but about policy toward Israel in general. But Monday’s decision has broader implications. For example, it calls into question any attempt by Congress to nullify Obama’s decision to reestablish diplomatic relations with Cuba.
The court didn’t assign all power over diplomacy to the president, noting that the executive branch “is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” Congress can still use its power of the purse to try to undermine the president’s diplomatic initiatives, and the Senate can refuse to confirm ambassadors or approve treaties.
Yet it is the president alone who is responsible for the day-to-day conduct of diplomacy. The court was right to hold that decisions about recognizing foreign governments are an essential part of that responsibility. Congress may not undermine that principle in the guise of accommodating the wishes of Menachem Zivotofsky and his family.