Americans don’t know whether their president should be more like Victor von Doom, whipping Congress into line, or like Jeeves the butler, murmuring respectfully, “Will that be all, sir?” The text of the Constitution provides remarkably little guidance on the question.
Because disputes between the president and Congress usually are settled in the court of politics, the Supreme Court rarely gets a chance to weigh in. This Monday the Court will consider a small-stakes controversy—one word of a young child’s passport. But the Court should proceed with caution: Its decision may influence many disputes we cannot foresee.
Zivotofsky v. Kerry arises from the ongoing dispute over U.S. policy toward Jerusalem as the capital of Israel. Every administration has taken the position that until a final peace settlement is reached between Israel and its neighbors, the “final status” of Jerusalem is unsettled.
In September 2002, however, the House and Senate both passed a provision titled “United States Policy With Respect to Jerusalem as the Capital of Israel.” This statute “urge[d]” the president to move the U.S. Embassy to Jerusalem (thereby implicitly recognizing it as part of Israel). George W. Bush and then Barack Obama ignored the exhortation as an invasion of the president’s power to conduct foreign policy. Section (d) of the Act, in addition, stated that any American born in Jerusalem could choose to have the “Place of Birth” blank of his or her passport read either “Jerusalem” or “Israel.” Current State Department policy is to list only “Jerusalem,” without any designation of country, on the grounds that the United States has not recognized Israel as the sovereign in Jerusalem.