Editorial: This power lies with the president, not Congress

On Monday, the Supreme Court will hear arguments on what may seem like a minor issue: whether a 12-year-old boy named Menachem Zivotofsky can insist that his U.S. passport identify his birthplace as “Jerusalem, Israel.”

But the case involves issues of much greater political and constitutional moment, and it’s important that the court resolve it in a way that preserves the president’s authority over the conduct of international diplomacy. That means saying no not only to Menachem Zivotofsky and his family but also to Congress.

In 2002 Congress enacted a law that requires the State Department to honor the request of any U.S. citizen born in Jerusalem that the city be identified as part of Israel. But Congress’ purpose wasn’t simply to indulge the personal preferences of passport holders; it was to offer support for Israel’s claim of sovereignty over the disputed city.

The problem is that presidents stretching back to Harry S. Truman — who recognized Israel on behalf of the U.S. in 1948 — have been careful not to acknowledge Israeli sovereignty there. Like every other nation, the U.S. locates its embassy in Tel Aviv, despite repeated attempts by Congress (including in the 2002 law) to move the embassy to Jerusalem.

This doesn’t mean that President Obama wants to expel Israelis from Jerusalem. No one believes that the U.S. would ever accept a peace agreement in which Israel didn’t control West Jerusalem, as it has since 1948. But presidents — Republicans and Democrats alike — have concluded that prejudging the status of any part of Jerusalem would undermine negotiations to achieve a lasting peace agreement between Israel and the Palestinians.

More to the point of this lawsuit, presidents of both parties have objected on constitutional grounds to efforts by Congress to alter U.S. policy regarding Jerusalem. When he signed the 2002 law at issue in this case, President George W. Bush issued a statement warning that language suggesting that the city was part of Israel would “impermissibly interfere with the president’s constitutional authority to formulate the positions of the United States, speak for the nation in international affairs and determine the terms on which recognition is given to foreign states.”

So far the executive branch has prevailed. The U.S. Court of Appeals for the District of Columbia Circuit ruled that the law intruded on the president’s exclusive authority to recognize foreign governments and their territorial claims — authority conferred by language in the Constitution saying that the president shall “receive ambassadors and other public ministers.”

In their briefs filed with the Supreme Court, lawyers for the administration and the Zivotofsky family engage in dueling interpretations of history. The administration insists that from the time of George Washington, presidents have asserted “the sole authority to recognize a foreign state” and that Congress has acquiesced in that view. The Zivotofskys’ lawyers counter with examples of presidents who accepted a congressional role in the recognition process.

But history may be less important in deciding this issue than logic and political reality: It’s the president, not Congress, who is entrusted in the Constitution with the conduct of foreign policy, an enterprise considerably more complex now than it was in Washington’s time. Decisions about recognizing foreign governments are an essential part of that responsibility, and the president is better positioned than Congress to make such decisions quickly and in line with the nation’s overall foreign policy.

Congress plays a significant role in international affairs: It has the power to declare war, and through the power of the purse determines whether and how the U.S. will provide military and economic support to other nations. Treaties must be ratified by the Senate, which also confirms the secretary of State, ambassadors and other officials.

But, whatever one thinks of the U.S. position on Jerusalem — and clearly many in Congress object to it, or say they do — the decision about whether to recognize the city as Israel’s capital properly belongs to the president. The Supreme Court shouldn’t allow Congress to encroach on that authority even to the limited extent of ordering the State Department to print “Jerusalem, Israel” on Menachem Zivotofsky’s passport.

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