In a “signing statement” President Trump called Congress’ law stiffening sanctions against Russia “significantly flawed.” He criticized two provisions as “clearly unconstitutional,” even though he “shares the policy” they express. These provisions were declarations by Congress that the United States does not recognize Russia’s occupation of Crimea and Eastern Ukraine. They conflict, the “signing statement” says, “with the Supreme Court’s recent decision in Zivotofsky v. Kerry.”
In Zivotofsky v. Kerry, a majority of the Court, including current Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, stated definitively and unqualifiedly that “the power to recognize or decline to recognize a foreign state and its territorial bounds resides in the President alone.” The Supreme Court decision invalidated an Act of Congress which, a majority of the Justices said, interfered with a power that is exclusively the President’s. While invoking the Zivotofsky decision’s limitation on Congressional authority, the President has not, to this date, implemented the positive power given him by the Supreme Court. He should wield the exclusive “recognition” authority to declare American policy that Jerusalem is in Israel.
The Supreme Court’s ruling in the Zivotofsky case means that no living human being other than Donald J. Trump has any authority to decide for the United States whether the City of Jerusalem is inside the territorial boundaries of the State of Israel. When running for President Mr. Trump stated repeatedly that he planned to move the United States Embassy in Israel to Jerusalem. It may take time to select a site and to construct an appropriate building. A physical move of the United States Embassy today might, some think, set off riots in the Palestinian population and hinder a negotiated peace. Opponents of moving the embassy may well resort to the courts to prevent a physical move.
The Zivotofsky ruling by five Justices of the Supreme Court means, however, that there can be no court decree that prevents, enjoins, or overrules a pronouncement by President Trump that the United States formally recognizes the boundaries of the State of Israel to include the entire City of Jerusalem. The Justices of the Supreme Court that President Trump probably most admires – Chief Justice Roberts, the late Justice Scalia, and Justice Alito – dissented in the Zivotofsky case and would have upheld Congress’ recognition of Jerusalem as within Israel. Justice Alito pointed out during my daughter’s oral argument in the Zivotofsky case as well as during the argument of Solicitor General Donald Verrilli that, in reality, Israel exercises governing authority over the City of Jerusalem. Israel prosecutes crimes committed in the city and provides necessary municipal services. If the Embassy is ever to be moved to Jerusalem, a prior Presidential declaration that the city is in Israel is essential. It would make no sense to move the United States Embassy to a city that is not even, according to official American policy, in Israel.
Will such a declaration – if the physical move of the Embassy is deferred – doom the prospect of peace between Israel and the Palestinians? Our family law firm’s litigation of the Zivotofsky case indicates that this fear is exaggerated. In the first eleven years of the Zivotofsky lawsuit, the Bush and Obama Justice Departments opposed us, and only Jewish organizations professing to encourage peace and two-state negotiations in the Middle East filed friend-of-the-court (amicus curiae) briefs against us.
When the case was on its way to the Supreme Court a second time we called attention in our briefs to the earlier silence of Palestinian and Arab organizations. This generated the first and only friend-of-the-court opposition brief filed by any Palestinian or Arab organization. The American-Arab Anti-Discrimination Committee submitted an amicus brief in which pages 3-17 argued that “the Executive Branch has the exclusive authority to recognize foreign sovereigns and decide their territorial boundaries.” A majority of the Supreme Court’s Justices accepted that constitutional claim.
If the President now exercises the power endorsed by the American-Arab Discrimination Committee and by a majority of the current Supreme Court and recognizes that Jerusalem is inIsrael, every American citizen born in Jerusalem will automatically have his or her place of birth identified in his or her passport as “Israel” -- no differently than American citizens born in Tel Aviv or Haifa.
Mr. President: The Zivotofsky decision gives you exclusive authority to take an easy step that will correct decades of unreality and injustice.
By Nathan Lewin
Nathan Lewin is a lawyer with the Washington law firm Lewin & Lewin LLP that represented Menachem Zivotofsky pro bono in the 12-year lawsuit argued twice in the Supreme Court.