The Supreme Court Decision on Yerushalayim Lets Obama Ignore Reality


obama2The problem with American Middle East policy during the Obama administration has always boiled down to one factor: the president and his foreign policy team prefer their fantasies about the way things should be to the cold hard reality of Palestinian rejectionism, Islamist terror, or Iran’s ambitions for regional hegemony. That hasn’t worked out well for America or its allies, as the U.S. has suffered setback after setback with the collapse of revived peace negotiations that were doomed to fail, Hamas’ hold on Gaza, Iran’s growing power, and the rise of ISIS. But let it not be said that the president hasn’t won any victories. By siding with the administration in the case of Zivotofsky v. Kerry, the U.S. Supreme Court has upheld the executive branch’s constitutional power to recognize foreign governments. In this instance, that meant allowing the president to declare that, contrary to an act of Congress as well as the facts on the ground, Obama is entitled to pretend that the city of Jerusalem isn’t the capital of Israel or even part of the Jewish state. This triumph may cause celebration in the White House as well as among Israel’s foes. But it should also be put down as yet another win for fantasy over reality as well as one that won’t further the cause of peace.

The case involved American citizens living in Israel who wanted the government to put down Jerusalem, Israel as their son’s place of birth on his passport. Considering that this is where he was born and that U.S. law states that Jerusalem is part of Israel, there shouldn’t be any problem with this request. But since, due to an awkward diplomatic dance it has been conducting since 1948, the U.S. has never recognized that Jerusalem is part of Israel, the consulate refused leading the Zivotofskys to sue and to take their case all the way to the Supreme Court.

The impact of this decision is outrageous, but it is easy to understand where the majority is coming from. The Constitution is clear that foreign policy is the prerogative of the executive branch, not Congress. One would wish the Obama administration might have equal respect for constitutional dictates that don’t favor increasing its power, as it did here. But while the president feels free to ignore the Constitution when he wants to flout the will of Congress and legislate on his own by granting amnesty to millions of aliens, he is happy to hide behind the Constitution when it comes to upholding the longstanding denial that Jerusalem is Israel.

As Chief Justice Roberts and Justices Alito and Scalia stated in their sensible dissent in the case, it’s not quite as simple as that. This area of law is, as even Justice Anthony Kennedy admitted in the majority opinion, not well defined because the body of case law is meager. In the past, the legislative and the executive branches have largely settled any disputes without the judiciary having to intervene as the referee. But while the Constitutional principle that the president has the right to make foreign policy must be respected, the notion that he may ignore U.S. law when doing so is not well established. Just as President Reagan did not have the right to fund the Nicaragua contras during the period when Congress forbade it, it can be argued with equal force that once a law was passed and signed (though President George W. Bush said he wouldn’t enforce it) that stated the U.S. recognized that Jerusalem was part of Israel, the executive did not have the ability to go on denying it. As with immigration, President Obama wants to have his cake and eat it too and a 6-3 majority in Zivoftosky appears happy to let him have it.

But let’s, at least for a moment, leave the legal technicalities of this subject to the lawyers and comment instead on what this means for U.S. foreign policy.

The administration thinks being upheld on this point is good for America because it allows it to continue maintaining the fiction that Jerusalem isn’t part of Israel. The bizarre refusal of the U.S. to formally acknowledge that even West Jerusalem — that section that has always been part of Israel since May 1948 — is part of the Jewish state also makes peace less likely. The administration or any of its predecessors could have simply moved the U.S. embassy to Jerusalem even if they insisted that the eastern part was not part of Israel. But they have all refused, making it even more difficult for Palestinians to recognize Israel’s legitimacy.

Reversing that stand would be unpopular in the Arab and Muslim world. This fiction enables the Palestinians to go on insisting that Israel give up the portions of the city that were illegally occupied by Jordan between 1948-1967. The presumption is that once peace is achieved between Israel and the Palestinians, including, at least according to President Obama, a re-partition of the city, the U.S. might have a more realistic policy about Jerusalem. What’s wrong with that seemingly position is that so long as the U.S. is encouraging the Palestinians to think they can have all of that portion of Israel’s capital as part of that state — including mostly 40-year-old neighborhoods where hundreds of thousands of Jews live — they’ll never come to terms with the fact that they are going to have to accept a compromise and leave those people in place and allow the city to remain united.

If that wasn’t bad enough, Obama, more than any other president since 1967 has encouraged this delusion by treating these Jewish neighborhoods as being as offensive to him, and the Jews who live there as just as liable to be thrown out of their homes as the most remote West Bank settlement. That broke new and even more dangerous ground on the issue and made a resolution on Jerusalem even less likely to happen in the foreseeable future.

Obama can celebrate the court’s dubious endorsement of his power to deny reality in Jerusalem, but no one should be under the impression that this is good for peace. All the Supreme Court decision on Jerusalem has done is to reinforce the president’s worst instincts that reflexively always cause him to prefer his fantasies about Jerusalem and the rest of the region to reality and common sense.


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  1. It is the author of this essay who doesn’t understand reality. There is a difference between *de jure* legal status and *de facto* political authority. The *de jure* status of every part of the former League of Nations Mandate for Palestine remains UN Resolution 181, passed November 29, 1947. Until a final status agreement between Israel and the Arabs, that is the reality.