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Abu Dhabi, UAEMonday 20 August 2018

Jerusalem issue does not belong in the US courts

Jerusalem is a final status issue to be negotiated between Israel and the Palestinians, writes Hussein Ibish.
The US Supreme Court in Washington DC has ruled on whether Americans born in Jerusalem can claim Israel as their place of birth. (Andrew Harrer / Bloomberg)
The US Supreme Court in Washington DC has ruled on whether Americans born in Jerusalem can claim Israel as their place of birth. (Andrew Harrer / Bloomberg)

Last week’s US Supreme Court ruling overturning a law that would have allowed American citizens born in Jerusalem to request that their passports list their country of birth as “Israel” elicited widespread and passionate reaction. But almost all of it failed to acknowledge the central point in the case, which has nothing to do with the status of Jerusalem. Instead, it’s almost entirely about the separation of powers between the different branches of the US government.

Predictably, the parties with a vested interest in Jerusalem could not resist the opportunity to grandstand. Israel’s mayor in Jerusalem, Nir Barkat, citing an alleged rise in global anti-Semitism, demanded Barack Obama offset the ruling by recognising that “Jerusalem was and always will be the capital of Israel”. Chief Palestinian negotiator Saeb Erekat claimed the Court’s ruling “sends a clear message to Israel that its policies of colonisation are null and void”.

Some Jewish-American groups rushed to reassure their constituents. The American Israel Public Affairs Committee (AIPAC) claimed that “the court opinion, viewed in its totality, clearly recognises the important role that Congress plays in US foreign policy – a role that has been critical in strengthening the US-Israel relationship”.

The lawyers for the plaintiffs in the case, despite their complete defeat, similarly claimed that the ruling ensures that “Congress’s broad powers to deal with foreign policy remain virtually unlimited”.

On the contrary, the ruling was a powerful affirmation that foreign policy is largely within the purview of the executive. Congress’s limited role in foreign policy is essentially expressed in three basic functions. First is its control over government appropriations and spending. Second is the role of the Senate to “advise and consent” on some matters like confirming high level appointments and ratifying treaties. Third is general oversight of the executive branch, largely through powerful congressional committees.

Congress is also supposed to have the authority to declare war, but this was eroded in the first half of the 20th century and virtually dispensed with in the second half. The way the modern state, international relations, and the technology of war-making, transport and communications evolved, made it unavoidable that executive authority over the use of force became an almost exclusive executive prerogative, despite widespread misgivings about the emergence of an “imperial presidency”.

There is a long history of military actions being conducted without congressional approval, or being endorsed by legislative measures such as the 1964 Gulf of Tonkin Resolution. The last congressional declarations of war were during the Second World War. The 1973 War Powers Resolution sought to restrict executive authority regarding the use of force, but it has been successfully ignored on numerous occasions, for example the 1999 air war in Kosovo by the Clinton administration or the intervention in Libya in 2011. Presidents George W Bush and Obama sought congressional approval for military actions, in Iraq and Syria respectively, although both maintained they did not need it.

The history whereby the presidency has gradually inherited what was originally congressional power is instructive because it illustrates why the US, like virtually all governments, has a strong chief executive. The framers of the American constitution were operating in a highly antimonarchical political culture, having just broken with the British crown. They worried about creating another king. Nonetheless they understood that many functions of government could not be effectively performed by a committee like Congress.

The Court did not reiterate its 1936 US v Curtiss-Wright ruling designating the president “the sole organ of the federal government in the field of international relations”. But it did find that the current case is all about diplomatic recognition, which it held to be an exclusively executive power. “Recognition is a topic on which the nation must speak with one voice,” the Court ruled, and, “that voice must be the president’s.”

The ruling is correct on the political merits as well. Jerusalem is a final status issue to be negotiated between Israel and the Palestinians, not prejudiced by the international community. The last thing Middle East peace needs right now is for the US to abandon decades of consistent policy and the rock-solid international consensus on Jerusalem.

Had the Court ruled in favour of the plaintiff, the giant committee called Congress would have been effectively invited, and could not resist trying, to legislate policy on numerous sensitive and complex international matters, with predictably disastrous consequences. The scramble to reverse such a colossal blunder would be impressive and historic. Americans should be grateful their Supreme Court spared them that potentially ignominious tragicomedy.

Hussein Ibish is a senior resident scholar at the Gulf Arab States Institute in Washington

On Twitter: @ibishblog

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