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Sad but true: Supreme Court was right to uphold the President’s wrong policy

As much as it pains me to say it, the US Supreme Court was correct in its ruling on the case of Zivotofsky et ux. v. Kerry, Secretary Of State. To those who don’t intimately follow the to-ing-and-fro-ing of America’s judicial system, this was the civil suit filed by a Jerusalem-born US citizen wanting Israel to be listed in his passport as place of birth.

In their infinite lack of wisdom, American presidents of both stripes – Republican and Democrat alike – have refused to recognise Jerusalem as Israel’s capital city. And as a result they not only have kept the US embassy on HaYarkon Street in Tel Aviv, but the passports of US citizens who enter this world in Jerusalem appear without a birth country listed.

This is a craven policy that revolves around the simple calculus that Israeli protests against not moving the embassy will be less politically painful to Washington than Arab protests in the event it were moved. At its core this is and always was a political decision.

But regardless of the undeniable moral merits of the Zivotofsky family’s case, from the perspective of US constitutional law they were skating on very thin ice. It didn’t matter that pro-Israel elements in Congress passed legislation requiring the State Department to register Israel as place of birth in such cases. The ‘rock-paper-scissors’ principle of US jurisprudence dictates that the Constitution will always trump a run-of-the-mill congressional statute. And this action by Congress clearly ran afoul of Article II-Section 3 of the Constitution that grants the President exclusive authority to recognise foreign nations and governments:

“The Constitution’s text and structure grant the President the power to recognize foreign nations and governments. The Reception Clause directs that the President “shall receive Ambassadors and other public Ministers,” Art. II, §3. And at the time of the founding, receiving an ambassador was considered tantamount to recognizing the sending state’s sovereignty. It is thus logical and proper to infer that the Reception Clause would be understood to acknowledge the President’s power to recognize other nations. This inference is further supported by the President’s additional Article II powers: to negotiate treaties and to nominate the Nation’s ambassadors and dis- patch other diplomatic agents. Though ratifying a treaty and confirming an ambassador require congressional approval, Congress lacks authority to initiate the actions without the President’s involvement. The President, unlike Congress, also has the power to open diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers. The Constitution thus assigns the President, not Congress, means to effect recognition on his own initiative.”

As annoying as the upshot of this decision is in one way, it’s reassuring in another. As someone with decidedly conservative inclinations, I believe the proper role of the judiciary is to interpret the law rather than to legislate from the bench. When unelected judges take it upon themselves to change the law in order to achieve ends they subjectively deem to be good, democracy is undermined and freedom is imperilled.

Even if someone happens to likes the outcome of a particular ruling, it should not be forgotten that judicial activism emasculates the protections of individual liberty enshrined in the Constitution. After all, who can predict how that precedent of lawmaking by unelected judges will be used in future? Once established, such judicial authority could very well be used to the people’s detriment in the years to come. So we might not appreciate the particular outcome in Zivotofsky, this Supreme Court decision returns this issue to its proper sphere – the political arena.

Recent presidential candidates have been quick to make all sorts of promises about Jerusalem, and equally quick to forget those commitments once their victory party confetti is swept into the bin. By the time presidents-elect make it to Inauguration Day, Washington’s foreign policy ‘establishment’ – the State Department and think tanks – have invariably convinced the new resident of 1600 Pennsylvania Avenue to put the Jerusalem issue in the ‘too hard’ basket.

So once again, this is a political problem that requires a political solution. The American Jewish community simply needs to do what it can to hold newly elected presidents’ feet to the fire.

Meanwhile, in other political news, I’m very pleased to report that the great State of South Carolina has become the second American jurisdiction (after Illinois) to pass substantive anti-BDS legislation. The South Carolina law prohibits any state government agency from entering into a contract with any business that is BDS-compliant.

Perhaps this is something we should think about as well?