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Zivotofsky v. Kerry: The Supreme Court case over Israel and US foreign policy, explained

Oral arguments begin today in Zivotofsky v. Kerry, a landmark and highly unusual Supreme Court case. The case has to do with two big, difficult issues: how the US government is allowed to make foreign policy and, in case that wasn't thorny enough on its own, the Israel-Palestine conflict.

You often hear the case described as about Jerusalem, but it's about much more than that. Here are the very basics of the case and why it matters.

Zivotovsky v. Kerry started over an infant's passport

US passports being processed (Joe Raedle/Getty)

In 2002, American couple Ari and Nomi Zivotofsky gave birth to a son, Menachem, while in Jerusalem. When they applied for Menachem's US passport, they entered "Israel" under place of birth. The State Department refused: its policy since 1948 has been not to register Israel as the place of birth for Americans born in Jerusalem, because formally recognizing Jerusalem as part of Israel would upset the Israel-Palestine peace process.

The Zivotofskys sued the State Department, saying it should record Israel as their son's place of birth. About a decade later, the case has worked its way up to the Supreme Court. The case is stylized as "v. Kerry" because it is technically against John Kerry, the secretary of state, but it is functionally a suit against the US federal government.

The Supreme Court is not ruling on whether or not the State Department's Jerusalem policy is a good idea — a point that is widely misunderstood, especially in the Israeli press. The court is only ruling on the constitutional issue over how the branches of government handle foreign policy; specifically, it is ruling on whether Congress violated the Constitution when it passed a 2002 law overruling the State Department's policy on registering passports from Americans born in Jerusalem. But the ruling could nevertheless impact US foreign policy and the Jerusalem issue.

The surprisingly consequential dispute: does the State Department's policy break the law?

Then-President George W. Bush speaks in Jerusalem. Like Obama and Clinton, Bush resisted Congressional pressure to treat Jerusalem as the Israeli capital (Ariel Schalit-Pool/Getty)

While the case has an awful lot to do with the nitty gritty of the Israel-Palestine conflict, at its core it is not about the Middle East. Rather, it's a constitutional dispute over the degree to which Congress is allowed to pass laws setting foreign policy.

This State Department policy has been in place since 1948 (more on that later) and has been reaffirmed by every president since, who define it as part of US foreign policy. That definition is really crucial because the executive branch is supposed to have a great deal of authority and autonomy when it comes to setting foreign policy.

But in 2002, shortly before Menachem Zivotofsky was born, Congress passed a law requiring the secretary of state to record Israel as the place of birth in the passport of any American who was born in Jerusalem and requested it. In other words, it ordered the State Department to change its 54-year-old policy on Jerusalem. President George W. Bush issued a signing statement saying he would ignore the law as "impermissibly interfer[ing] with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch."

The Zivotofskys say that the State Department broke this 2002 law by rejecting their passport form. The State Department says that the 2002 law is unconstitutional because Congress can't dictate foreign policy. So the case is about whether the 2002 law is constitutional or not.

Why this passport law such a big deal for the Israel-Palestine conflict

Jerusalem: the Western Wall and the Dome of the Rock. (July, 2014) Uriel Sinai/Getty Images

The Western Wall and the Dome of the Rock in Jerusalem's Old City (Uriel Sinai/Getty)

According to Israel, every inch of Jerusalem is not just Israeli territory but the Israeli capital. According to the entire rest of the world, including the United States, control over Jerusalem is legally contested and unsettled, and will remain that way until the Israel-Palestine conflict, in which Jerusalem is a big issue, is formally resolved.

The State Department has had this passport policy on Jerusalem since 1948, when the United Nations voted to divide the British Mandate for Palestine into two states, Israel and Palestine, with Jerusalem as a special international zone. Instead, the 1948 Arab-Israeli War broke out, which ended with Israel controlling West Jerusalem and Jordan controlling East Jerusalem. Since then, a lot has happened to Jerusalem (Israel now controls all of it), but the US and UN have always maintained their position that Jerusalem and its control are unsettled issues in an ongoing conflict.

This policy of neutrality on Jerusalem is seen as so important to the Israel-Palestine peace process that when Israel declared the city its undivided capital in 1980 (effectively claiming heavily-Palestinian East Jerusalem as permanent Israeli territory), the United States and eventually every other country moved their embassies from Jerusalem to Tel Aviv.

Congress's 2002 law, and Zivotofsky's lawsuit, are meant to force the US government to take Israel's side on Jerusalem, if only symbolically, and to endorse the idea that Jerusalem is Israeli territory. Because the US is the primary broker of the Israel-Palestine conflict, US neutrality on key disputes like Jerusalem is extremely important - even a tiny symbolic issue, such as US passport policy, matters.

The argument for ruling with the State Department: the president rules foreign policy

Secretary of State John Kerry in Tel Aviv (BRENDAN SMIALOWSKI/AFP/Getty)

Generally legal scholars seem to think that the Supreme Court will rule against the Zivotofskys. That is, the court will likely say that Congress can't force the State Department change its Jerusalem policy, effectively enforcing the status quo.

The primary reason that the court will likely side against Zivotofsky is that the Constitution is widely understood as giving the executive branch the bulk of foreign policy powers. That derives from something called the "sole organ" doctrine, named for a speech that founding father John Marshall gave in 1800, a year before he became the chief justice of the Supreme Court. Marshall said, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." A 1936 Supreme Court decision, United States v. Curtiss-Wright, ruled that the "sole organ" doctrine grants the president inherent constitutional powers in foreign relations.

Those inherent presidential powers are considered to include authority to recognize countries and borders, which is central to the Jerusalem issue. The idea is that the US government needs to be a single unified entity on the world stage in order to conduct effective foreign policy. Letting the president and Congress independently set their own foreign policies would lead to chaos.

A secondary, more practical reason is that the Supreme Court is aware its actions could affect US foreign policy — which it doesn't want to do — and will impact the Israel-Palestine conflict, which is way outside the court's jurisdiction. (A US district court initially dismissed the case for this exact reason.) The justices presumably do not want to set US foreign policy from the bench, which means it will likely rule against Zivotosky, but it also means being careful not to rule with the State Department so assertively that it actually hands the president even more power over setting foreign policy.

That may be the biggest thing holding back the Supreme Court from siding with the State Department: the risk that, in explaining why the State Department is right, it ends up describing — and thus granting — more foreign policy autonomy than the president has had.

The argument for ruling with Zivotofsky: sometimes Congress gets a say

Palestinians protest outside the US consulate in Jerusalem in 1993. The US embassy moved from Jerusalem to Tel Aviv in 1980. (MAHFOUZ ABU TURK/AFP/Getty)

There are two prominent arguments that Congress' 2002 passport law is constitutionally okay.

One is that Congress has passed a number of laws regulating passports before, for example requiring that they be machine-readable or that they be denied in certain cases to Americans who have missed child support payments. Therefore, the argument goes, it has the power to regulate passports, which includes setting country of birth.

The other argument is that the 2002 law isn't about setting foreign policy, it's about regulating commerce, which is a congressional power that can include the movement of persons across borders. Passports are part of international travel, and international travel is commerce, and Congress can regulate commerce, therefore it can set passport policy.

A legal problem with these arguments it that Congress tipped its hand when it passed the 2002 law, which is called "United States Policy With Respect to Jerusalem as the Capital of Israel." So clearly the intent of the law is to set foreign policy — not just regular commerce.

The vast potential impact of the Supreme Court's ruling

The US Supreme Court (Alex Wong/Getty)

A lot. On the legal question of separation of powers, of how the president and Congress divide foreign policy, constitutional law and precedent seem clear that bulk of that power rests with the president, but is frustratingly vague on the specifics of how it's delineated. How the Supreme Court decides this case could end up clarifying that question, which means defining just how much power each branch has over foreign policy.

If the court hands Congress more power by ruling with Zivotofsky, or if it hands the president more power by ruling too assertively with the State Department, it could have a huge impact in how the United States conducts foreign policy in the world, and thus have a big impact on the world itself. The court is likely to try to sidestep that question for exactly this reason, but you never know.

And a ruling could have a real impact in the Middle East. Tensions are especially high in Jerusalem right now; a ruling that sides with Zivotofsky could be seen as America formally taking Israel's side on the Jerusalem issue, further inflaming unrest there. It could also embolden Congress to meddle even more in US policy toward Israel-Palestine, which would undermine peace process efforts by this and any future president.

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