Analysis: Just how big a blow for Israel was the US Supreme Court’s passport decision?

The Palestinian Authority said the decision sends a message to Israel that “Jerusalem is occupied territory.”

US Supreme Court (photo credit: REUTERS)
US Supreme Court
(photo credit: REUTERS)
Perhaps the most remarkable thing about Monday’s US Supreme Court decision nullifying a law allowing Americans born in Jerusalem to register the birth as taking place in Israel on their passport was that the law had been so close to being put into effect.
The 6-3 decision immediately aroused strong feelings in the region, with Jerusalem Mayor Nir Barkat quickly appealing to US President Barack Obama to recognize Jerusalem as Israel’s capital and politicians linking the ruling with the growing menace of the Boycott, Divestment, Sanctions (BDS) campaign.
For its part, the Palestinian Authority said the decision sends a message to Israel that “Jerusalem is occupied territory.”
Many in Israel see this as a new blow to Israel’s legitimacy and as a further indication that the US is turning its back on the country. But the truth is that striking the law and maintaining the status quo on the issue of how the US views the sovereign status of Jerusalem was the position of every US president since Jerusalem was reunited in 1967.
Nevertheless, the Obama administration warned the court that a change in the status quo could provoke an uproar throughout the region and seriously undermine US influence. But despite that hard line, there were still some points where the law’s supporters could feel optimistic.
The legislation was saved previously by the Supreme Court in 2011, when a lower court struck down the law saying that the executive branch’s foreign policy role is so clear that it would not even analyze the balance of power between the president and Congress over the passport issue.
At that point, the Supreme Court ordered the lower court to analyze that balance before killing the law.
Justice Antonin Scalia wanted to uphold the law, saying that it did not impinge upon the president’s powers over foreign policy in the area of granting recognition of other country’s claims of sovereignty to certain areas.
In his typical fiery language, he excoriated the majority of the court for focusing on the recognition issue, saying the law was limited to what individual’s would like their passport to say and that the majority’s analytical jump was worthy of “the mad hatter” from Alice in Wonderland.
Justice Anthony Kennedy, the court’s swing vote, had appeared interested in a compromise that exploited that subtle distinction.
At oral argument he asked the litigants about the possibility of allowing Israel to be stamped on passports, but with a disclaimer that the statement had no bearing on recognizing Jerusalem as Israel’s capital.
Yet it appears there was no majority for this idea and keeping the law was always going to be an uphill battle.
The background of the 2002 law was the intention to use it to help inch the executive branch forward to finally implement a 1995 law ordering then-president Bill Clinton to move the US Embassy from Tel Aviv to Jerusalem. The Jerusalem Embassy Act of 1995 has been ignored by presidents even longer than the 2002 law was ignored, each employing the law’s “national security waiver” to put off implementation.
At the end of the day there have been very few cases where the Supreme Court has challenged the executive branch when it asserted that major foreign policy issues were at stake, regardless of whether the executive’s judgment was correct or not.
This time around was going to be an even harder sell, since the ban on recognizing Jerusalem has been bipartisan. Highly conservative Justice Clarence Thomas voted with the liberal majority (though interestingly he said he would have allowed Israel to be printed on a Consular Report of Birth.) Justice Elena Kagan, who also voted to strike the law, said that adding Israel onto passports is no minor issue, since history suggests that everything is a big deal with respect to Jerusalem.
Though the law made it close to the finish line, the court could have been expected to annul it from the moment it was conceived. As disappointing as the ruling is for many, it does not change the status quo.