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PS21 Insight: what the SCOTUS Jerusalem passport decision


Zivotofsky v. Kerry case fundamentally about relationship

between executive and legislative branches
The decision reaffirmed the President and State Departments
autonomy in international affairs
But it could also have ramifications for the US-Israeli relationship
Will the ruling affect US foreign policy?

Last month the US Supreme Court ruled that Congress cannot force the
State Department to issue passports that recognize Jerusalem as a part
of Israel, concluding the twelve-year-long case Zivotofsky v. Kerry. The
decision sparked a conversation on the status of Jerusalem, a question
that remains one of the most sensitive sticking points of the IsraeliPalestinian peace process.
Below is a selection of comments from the Project for the Study of the
21st Century.
Dr. Nikolas Gvosdev is a Professor of National Security studies at the
US Naval War College and a member of PS21s International Advisory
Milena Rodban is an independent geopolitical risk consultant and a
Global Fellow at PS21.
Dr. Hayat Alvi is a Professor of Middle East Studies at the US Naval
War College and a Global Fellow at PS21.
Please credit PS21 if you wish to use any of the material below. If you
wish to contact us to speak to any of our advisors or global Fellows,
please e-mail

The decision confirmed the status quo and reaffirmed the

Presidents sole authority to formally recognize foreign
Gvosdev: The decision itself is part of a long chain of precedents
(especially the 1935 Curtiss-Wright decision) where the Supreme Court
has reaffirmed that the President, as head of the Executive
Branch, acts as the sole organ for the United States in foreign policy.
The Congress, using its legislative power and budgetary authority, can
set and define the parameters of Presidential action, by giving or
withholding permission or funds--but what this decision reiterates is
that Congress cannot tell the President how he must use or exercise his
powers in any given specific case.
Rodban: This ruling changes little in deciding that the executive
branch is the sole part of government to have power over recognizing
foreign entities. That had already been the default setting of the US
But that doesnt mean Congress is powerless in the realm of
international affairs.
Gvosdev: If Congresswants to vest in the legislative branch the
power to recognize countries and their territories, it is free, in theory,
to pass a law that would vest that power in general in the legislature.
Having given that authority to the President, however, Congress
cannot demand that its preferences be substituted in place of the chief
executive's in terms of specific actions taken or not taken by the
This is critical because in other areas the Congress seems eager to
dictate to the President how he ought to carry out policy. Congressional
authority, for instance, is absolutely necessary, given the parameters
of the U.S. Code, for the President to have if he wishes to send arms to
Ukraine. Congress can grant him the authority to do so, but they
cannot compel him to act. (It is true, however, that Congress can use
its authority to "hold hostage" other parts of the President's agenda if
he does not wish to acquiesce to their preferences on this or other
Alvi: Decision making that directly affects foreign policies and
particularly those policies that are very fluid and politically loaded and
highly sensitive, such as the status of Jerusalem allow the President
of the United States room for maneuver and flexibility as changing
circumstances dictate.

That does not mean that Congress has no recourse or its own room for
maneuvering and responding. Congress holds the power of the purse,
that is, funding foreign policy courses of action, as articulated in Article
I of the Constitution. In addition, Article I, section 8, states, Congress
shall have the power to regulate commerce with foreign nations; to
establish an uniform Rule of Naturalization . However, that does not
mean that the President has no authority or power to engage in
political discourse that has impacts on said issues. Obviously, cases
arise that have no precedence due to their uniqueness, as in the case
of Jerusalem/Israel. There is nothing wrong with the Executive taking
certain stands on issues that have significant political ramifications,
and that requires interactions between the Executive and Legislative
branches on a case-by-case basis.

Additionally, its likely that the ruling will have an adverse

effect on an already weakened US-Israeli relationship.
Rodban: The Israeli leadership, and indeed the public, are used to the
American administrations speaking out of both sides of their mouth on
the status of Jerusalem, which is of course a final status issue.
(Negotiations being paused as they are, no movement is expected on
even the simplest of disagreements between the Israelis and
Palestinians, let alone the final status issues that are the very
contentious factors in their ongoing conflict.)
By speaking out of both sides, I of course refer to consecutive US
administrations vehemently arguing that Jerusalem will remain the
capital of Israel, and remain undivided. Obama said this himself in his
spirited 2008 address to AIPAC, for example, but the administration's
tune became far less vehement, as it subsequently avoided stressing
that Jerusalem was Israel's capital, and instead repeatedly claiming the
status was undecided. The big issue here is that Obama's two
statements were mutually exclusive with the assertion that Jerusalem's
current status is not final, and that all options are open in negotiations.
If all options are open, then dividing the city is likely to be at the top of
the options list. If the US argues that it will not be divided, then there
are in fact very few options, and really only the one: if half of it is
already in Israel, and it will never be divided, then all of it will remain
part of Israel, right? Seems pretty decided to me
Given tense relations between the Obama and Netanyahu
administrations, which are worsened still by perceptions that the US is
no longer as strong an ally of Israel as it once was (evidenced by
reports that the US is caving on many aspects of the Iran nuclear
negotiations), any issue that can be used to support the assertion that
Obama is not a close ally are likely to exacerbate tensions. The biggest
effect will likely be among American Jews who may sour on the Dems
ahead of next year's elections. The administration's continuing
vacillation on the issue of Jerusalem will cause journalists, particularly
Israeli ones, to question all the nominees, to see what they will commit
to, but a single statement will no longer be accepted by an Israeli
public that's heard US administrations try to have it both ways for
Alvi: The caveat in all of this is the special U.S.-Israeli relationship, and
specifically how this relationship affects U.S. domestic politics, as well
as U.S. foreign policy making relative to the Middle East
region. Perhaps the U.S. State Department should allow passports to
say, born in Jerusalem, Israel/Palestine, but that comes with its own

set of problems, emotive reactions, and a host of more lawsuits, to be

And it could have ramifications beyond the Middle East as well.
Alvi: What happens when a citizen of Crimea wants his/her passport to
say, born in the Russian Federation? Or, in the near future, an Iraqi
or Syrian Kurd who shares U.S. citizenship wants the passport to say,
born in Kurdistan? Or, even more menacing, a U.S. citizen born in
Mosul wants to say, born in the Islamic State?

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