Diplo­mat in chief

Los Angeles Times - - OPINION -

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.

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