I am not thrilled that the Supreme Court granted certiorari in the Jerusalem Passport Case, Zivotofsky v. Kerry. I continue to think the case is non-justiciable (though not for political question grounds rejected by the Court in their prior encounter with the case), for reasons I will explain in a subsequent post. But I’ve increasingly taken a more generous view of the separation of powers merits.
Recall that Congress passed a law requiring “Israel” to be listed as the country of birth of those Americans born in Jerusalem, but a series of presidents have refused to so, simply letting it say “Jerusalem,” without a country. President Obama claims that complying with the law could have disastrous foreign policy consequences, and possibly lead to war (which itself might be a reason to think the decision belongs to Congress).
The case is widely seen as one about the recognition power, and it is widely thought that the President has a primary role in matters of “recognition.” Recognition comes in two flavors – recognizing countries as sovereign entities and the regimes that run them as proper governments. But the Jerusalem flap involves neither. Congress and the President agree that Israel exists and what its legitimate government is. (And the Executive has been inconsistent in its denials of Jerusalem’s location.)
Nor is this about the terms on which recognition is granted. The question here is an unusual one – the President agrees Israel exists, but just does not want to say that Jerusalem is in it. This is more one of border determination – is West Jerusalem in the recognized country of Israel, or in no country, as the executive sometimes maintains. Seen this way, the issue does not fall within the classic recognition paradigm, and we must consider how [...]