Why ‘Jerusalem, Israel’ can’t be on US passports

There is no serious question that Jerusalem is as much part of Israel as Ashkelon or Beersheba.

By EUGENE KONTOROVICH
US passport 311 (photo credit: Thinkstock/Imagebank)
US passport 311
(photo credit: Thinkstock/Imagebank)
Two years after the US Supreme Court breathed life into a lawsuit challenging the US State Department’s refusal to write “Israel” on passports of Americans born in Jerusalem, the federal Court of Appeals for the District of Columbia dismissed the case, holding that the statute in question unconstitutionally intruded on the executive’s foreign relations powers.
The decision most likely marks the end of 10 years of litigation about the statute.
Despite the surreal nature of the US’s treating Jerusalem as a city without a country, the DC Circuit was right as a matter of constitutional law to affirm the president’s primacy in recognizing foreign governments, which entails decisions about their territory. But the existence of presidential discretion in this area does not mean this is sound use of it.
The Constitution gives the president the sole power to “receive Ambassadors.” This seemingly minor ceremonial right has since the early years of the Republic been taken as shorthand for the executive power to recognize the countries and governments sending the ambassadors.
Determining who relevant players are is the first step in foreign relations.
The plaintiff claimed the dispute was just about the contents of passports, not the actual recognition of foreign countries.
The argument was hard to take seriously: refusing to recognize Israeli sovereignty over western Jerusalem, on passports or elsewhere, is a crucial geographic limitation on the US’s recognition of the State of Israel, and a central issue in Middle East diplomacy.
More interesting was the plaintiff’s argument that Congress itself acted through its enumerated power to control “Immigration and Naturalization.” The court rather convincingly showed that issuing passports were not central to this power, which in any case Congress exercised concurrently with the executive’s foreign policy powers.
Thus in rock-paper-scissors terms, an exclusive executive power (recognition) beats a concurrent legislative one.
While the court’s application of these principles was reasonable, the anomalous status of Jerusalem in US law might suggest a greater role for Congress’s immigration powers here. Immigration and naturalization requires a prior determination of foreignness. Without deciding what country Jerusalem is in, Congress cannot properly make immigration policy. In the passport law, Congress did not challenge an executive determination of Jerusalem’s sovereign location, but rather a non-determination.
After all, if Jerusalem is not part of Israel, Palestine or Jordan – it might be part of New York, in which case no immigration or naturalization would be needed. More broadly, immigration policy may allow different numbers of people to come from different countries, which would make it essential for Congress to determine what country Jerusalem is in.
The DC Circuit stressed that no US government has ever recognized western Jerusalem as part of Israel – or any other country. Thus the capital of the Jewish state has an absolutely unique status in US law. By removing the legal cloud over the administration’s treatment of Jerusalem, the court now forces the policy to stand on its own merits.
There is no serious question that Jerusalem is as much part of Israel as Ashkelon or Beersheba. American presidents know that (and sometimes slip, speaking of Jerusalem as part of Israel).
They simply wish to avoid the threatened wrath of the Muslim world that would come from formally acknowledging Israeli sovereignty.
The Jerusalem policy has nothing to do with questions of Palestinian statehood, occupied territory, or the other issues linked to Israel’s victory in the Six Day War, as the administration does not recognize Israeli sovereignty over “pre-’67” Jerusalem either.
Secretary of State John Kerry is currently shepherding a diplomatic process aimed at securing negotiations that would commit Israel to return “back” to the 1949 Armistice Line, or the 1967 borders, as they are known. Yet the Jerusalem issue shows that the US never even fully recognized Israel’s sovereign rights within those lines. Indeed, that is why it is disingenuous to speak of them as “borders” – they were never fully resolved into internationally recognized frontiers. Before Israel could go “back” to the 1949 lines, America should go “up” to them – recognizing Western Jerusalem as the sovereign territory and political capital of the Jewish state.
The Jerusalem exception also illustrates the ease with which US foreign policy can bend in the face if Islamic intimidation – even to the point of adopting a surreal and counterfactual policy. Yet the possibility of peace with the Palestinians would depend on robust American guarantees to stand by Israel if the going got tough. The unwillingness to accede to reality on such a basic and longstanding truth does not auger well for this.
The author teaches constitutional and international law at Northwestern University School of Law in Chicago, Illinois.