Here's how it all lays out:
- In the 1967 Arab-Israeli war (which, let's not forget, began with an Israeli pre-emptive (i.e., surprise) air attack on Egypt's air force bases), Israeli forces took the West Bank (previously administered by Jordan) and with it, East Jerusalem, which included the Temple Mount/Haram al-Sharif area of the city. To this day, international law does not recognize or accept the Israeli annexation of East Jerusalem - which is why the US continues (despite the objections of Congress and the Israel lobby) to maintain its embassy in Tel Aviv, not in Jerusalem.
- The Israeli government nonetheless has proclaimed - and Benjamin Netanyahu has insisted, repeatedly - that Jerusalem is the eternal and indivisible capital of the state of the Jewish people.
- Our Congress - which, when it comes to Israel, could give a rat's behind about international law - has been all for this, and said so in 2002 by enacting a law directing the State Dept to “record the place of birth as Israel” in passports of American children born in Jerusalem if their parents ask. [this quoted from the NYT piece.]
- However, when then-president George W. Bush signed the law, he added a signing statement - essentially, a legal dodge, and one to which he resorted quite frequently - in which he effectively refused to obey this new law. (This is one of the very few actions by Bush that I ever applauded.) In that statement, Bush asserted that the 2002 law “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs and to supervise the unitary executive branch.”
- The Obama administration has maintained that position.
When the parents of one child affected by all this filed a legal complaint, a federal appeals court refused to invalidate Bush's signing statement. But the parents persisted, and the lawyer representing the parents succeeded in getting the case onto the Supremes' docket - much to the disappointment of the Obama team. The NYT reports:
The justices instead not only agreed to hear the case, M.B.Z. v. Clinton, No. 10-699, but also directed the two sides to address the broad question of whether the law “impermissibly infringes the president’s power to recognize foreign sovereigns.”
That power is rooted in the constitutional text, but not in an especially obvious way. The courts have said the president’s authority to “receive ambassadors and other public ministers” implies the power to recognize foreign governments.
A recent article in the University of Richmond Law Review argued that the original understanding of the clause concerning ambassadors did not support that leap. “The Constitution, by its terms, does not give the president the power to recognize foreign states or governments,” wrote Robert J. Reinstein, a law professor at Temple University
Mr. Lewin [the plaintiff's lawyer], too, said the courts had placed too much weight on the business about receiving ambassadors, which he said was not a presidential power but only a duty.
In its brief to the court, the administration warned about the consequences of a ruling against executive authority over this area.
Ever since the Truman administration, the brief said, “the United States’ consistent policy has been to recognize no state as having sovereignty over Jerusalem, leaving the issue to be decided by negotiation between the parties to the Arab-Israeli dispute.”
Allowing Congress to interfere, the brief went on, “would critically compromise the United States’ ability to help further the Middle East peace process.”
Mr. Lewin said both the Bush and Obama administrations had blown matters out of proportion.
“The government has been exaggerating the significance of this particular issue,” he said. “This is really a tempest in a teapot created by the State Department.”
In any event, he went on, “whether or not a passport says Jerusalem or alternatively Israel, I think, makes no difference whatsoever.”
Mr. Lewin was particularly critical of Mr. Bush’s announcement that he would sign a law but not comply with part of it.
“You can’t do by signing statement what you can’t do by veto,” he said.
Complicated, no? The part of me that doesn't want to see the US come down irreversibly on the side of treating Jerusalem as Israel's "eternal and indivisible capital" hopes that the Supremes will come down on the side of the Executive branch. The part of me that remembers how offended and enraged I was by Bush's frequent resort to signing statements to subvert the impact of legislation (especially when it had to do with torture and detention) wants the Supremes to come down on the side of the plaintiff.
But at this particular moment in America's politics and history, this entire affair reminds me of stupidly our Congress has long been prone to act. The 2002 law pandered to the politically powerful Israel lobby and Christian Zionist bunch - the same bunch whose influence garnered Netanyahu those bazillion standing ovations when he spoke before Congress several weeks ago. And it did so much to the detriment of America's respect and reputation across the globe. Fast-forward to July 2011, when Congress's shenanigans in regard to the debt-limit and budget crisis pose a threat to global economic stability, as well as America's global reputation. Stephen Walt puts it directly, though with uncustomary vehemence:
Why should Pakistanis, Afghanis, Europeans, Chinese, Thais, Mexicans, Venezuelans, or anybody else take our advice on how to govern, when they watch the sorry set of ignorant clowns who are holding the rest of us hostage? If the worst case happens and the United States ends up defaulting, the economic costs will be significant enough. But it is also likely to do considerable damage to America's reputation for being a reasonably well-governed society, and it will accelerate the tendency for people around the world to look elsewhere for guidance.