Friday, June 12, 2015

A Blow for Diplomacy

In a 6-3 decision last week, the Supreme Courtruled in favor of the Obama Administration in the case of Zivotofsky v. Kerry, which turned on the President's power to determine whether Jerusalem is, or is not, part of Israel.  The case was brought by the parents of Menachem Binyamin Zivotofsky, the child of two U.S. citizens whose mother gave birth to him in Jerusalem.  Those parents sued the government some years ago to force the State Department to list his country of birth as Israel on his passport, even though the United States has never acknowledged full Israeli sovereignty over Jerusalem.  The Congress, however, in 2002 passed a law specifically declaring that Americans born in Jerusalem should be able to claim Israel as their country of birth, and George W. Bush signing it, while declaring in a signing statement that U. S. policy towards Jerusalem "remains unchanged."  The law was one of many tributes to the power of AIPAC and the pro-Israel lobby.  It also represented a terrible trend in Congressional interference in foreign policy.

Not only AIPAC, but other lobbies working for or against governments such as those in Taiwan and Cuba, have managed to get Congress to pass laws reflecting their views.  The Taiwan Relations Act essentially demanded that the U.S. government maintain Taiwan as an independent nation, even though President Nixon had affirmed that it was part of China.  Several laws have been passed to try to make any reconcilization Castro impossible, as well.  Congress actually passed a law in the 1990s committing the United States to the overthrow of Saddam Hussein, and AIPAC is about to make an all-out effort to stop the nuclear deal with Iran by getting the Congress to maintain sanctions against that country.  In this case, five and a half Supreme Court Justices (the half being Clarence Thomas, who wrote a kind of half-concurrence in the opinion), went back to first principles and struck a blow for sanity in government.

Justice Kennedy's majority opinion is of a much higher standard than most of what comes out of today's court, a carefully reasoned summary of international law and history going back at least to the days of the Founding Fathers.  While the Constitution does not mention the power to recognize governments, it does give the President the power "to receive Ambassadors," which even then, Kennedy shows, was interpreted to mean the power to recognize the authority of a particular government over a particular territory.  The concept received a key early test when George Washington recognized the French revolutionary government.  The President, Kennedy notes, also has exclusive power to negotiate treaties and to send Ambassadors.  We have lost sight of the importance of all this today because of the facile assumption that the whole world must run on a single set of rules, rules developed in Washington think tanks and American universities. The Founding Fathers understood that their new government had to deal with dozens of other sovereign entities and gave the President the power to do so.  And the Supreme Court, as Kennedy shows, has reaffirmed that principle again and again in the last 200-plus years.  While he acknowledges that Congress must make numerous laws incident to the conduct of foreign policy, he emphasizes that recognition--in this case, determining who, if anyone, is currently sovereign over the city of Jerusalem--is the prerogative of the President alone.  He even shows that in the case of Taiwan, following President Carter's formal recognition of Communist China in 1979, the Congress, while passing the Taiwan Relations Act, never contested the President's power to recognize Chinese sovereignty over the island if he chose to do so.  And Kennedy proceeds to rule the 2002 law specifying that Americans born in Jerusalem have Israel listed as their country of birth on their passport unconstitutional.

What is rather astonishing is that Justices Roberts, Scalia (who wrote the principal dissent), and Alito, who have been zealous advocates of presidential power in cases involving the detention of suspects at Guantanamo under the Bush Administration, now stretch precedent and language to argue that Congress can indeed determine that an American born in Jerusalem has in fact been born in Israel.   I frankly find it hard to understand why they did this, unless it is for the simple,. partisan reason that Republicans now control the Congress while a Democrat sits in the White House. Meanwhile, Judge Thomas, in a lengthy and detailed concurrence, splits hairs very finely, arguing that Congress does not have the power to determine what should go on Zivotoksky's passport, but that it does have the power to make the State Department file a "consular report" stating that he was born in Israel.

I cannot help but note, also, that the three Jews on the Supreme Court--Justices Kagan, Ginsburg, and Breyer--all voted with the majority, joining three of the six Catholics.   In allowing their reading of the law to trump any ethnic loyalty the case might have triggered, they acted as good justices and good Americans.    They also gave the President the authority to exercise real leadership over a highly politicized issue.

The President, meanwhile, is failing to do just that on another issue relating to the Middle East, the continuing war in Iraq.  Barack Obama has some good instincts, and one of them led hm to reduce, if not eliminate, the presence of US ground forces in Muslim lands.  So far such forces have done far more harm than good and there is no reason to think that could change in the future.  The decision to leave Iraq some years ago was a good one, even if the United States could have chosen to remain, which I do not think that it could, since the Iraqi government would not extend the status of forces agreement.  Now, because the civil war between Shi'ites and Sunnis continued after our departure, ISIS controls much of Iraq.  And while the President still opposes US ground forces, he has also adopted the consensus view that we must eliminate ISIS--something we clearly do not have the power to do.  And thus, step by step, he inserting US forces back into Iraq.  Our new deployments have echoes of Vietnam in 1962:  while they are touted as advisory, most of the forces we are sending are not advisers at all, but will provide logistical support and protect the advisers.  Only time will tell whether they, like the forces that went to Vietnam in 1962, will also prepare the way for larger deployments.  Our tragic involvement in Iraq continues,. but that will be a subject for a later post.



2 comments:

Author said...

Excellent summary

Bozon said...

Professor

Thanks for this post and discussion of diplomacy.

I would just advert to the problems created, for the American system, by having lodged trade and diplomacy responsibility in the executive branch, as constituted in the system.

It has not been mainly a problem of legislative encroachment, although there has certainly been legislative muddling as well.

All the best