For seven months in 2011, the United States carried much of the weight in NATO’s extensive Libya campaign. Now, an American-led coalition is pummeling targets in Iraq and Syria. Neither of these extensive military actions was ever voted on by Congress. And just in the last few weeks, word has spread that the president will “do everything in his power to avoid letting Congress vote” on a settlement with Iran. Together, these episodes paint a picture of unbridled presidential power over foreign policy. Next Monday, in Zivotofsky v. Kerry, the Supreme Court will have its best opportunity in decades to check this rapid expansion of executive authority.
On its face, Zivotofsky is about passports and Mideast politics. For decades, presidential policy has held that the sovereignty of Jerusalem is a “final status” issue, only resolvable through a regional peace agreement. As a result, American citizens born in Jerusalem have no country of birth listed on their passports. (Their passports read “Jerusalem” rather than “Jerusalem, Israel.”) But in 2002, Congress tucked language into a larger bill insisting that the State Department “shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” President Bush signed the law, but issued a “signing statement” explaining that the directive was unconstitutional and that he had no intention of obeying. Enter Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. Since his birth, his parents have waged a legal battle demanding that the State Department comply with the Congressional mandate. On Monday, the case goes before the U.S. Supreme Court.
As a matter of policy, the law is a foolish stunt. An eventual recognition of Israel’s sovereignty over much of Jerusalem—like the eventual recognition of a sovereign Palestine—is a moral necessity. But not all moral rights must be vindicated immediately. And it would be diplomatic malpractice not to use recognition as a tool for advancing American interests—for instance coaxing the parties to make concessions and reach a comprehensive settlement.
But constitutionality, not wisdom, is the question before the Court. And the constitutional question is more complicated: Can Congress force the president to issue passports in a manner that conflicts with his diplomatic objectives? Yes, argue the Zivotofskys, and for two main reasons: First, passports and diplomacy can be easily separated. After all, Congress invented passports (in 1856) and has passed all manner of related regulations and restrictions ever since. A 1994 law even allowed Taiwanese-born Americans to record “Taiwan” as their place of birth—over the objections of the State Department and despite the president’s official “one-China” policy.