SLATE: … Congress passed the law, allowing U.S. citizens born in Jerusalem to list their place of birth as “Israel,” back in 2002, when George W. Bush was president. Like every president since the Truman era, Bush took the position that in order to be an honest broker for peace in the region, the question of who was in charge of Jerusalem required neutrality. He therefore issued a signing statement indicating that he would not enforce that provision. Thus the State Department still requires that Americans born in that city must have merely “Jerusalem,” and not “Jerusalem, Israel” or “Israel,” on their U.S. passports. “For a person born in Jerusalem, write JERUSALEM as the place of birth in the passport,” the State Department’s Foreign Affairs Manual instructs. “Do not write Israel, Jordan, or West Bank for a person born within the current municipal borders of Jerusalem.” President Obama has taken the same position…
Kennedy acknowledges that this is a kind of novel problem: “No single precedent resolves the question whether the President has exclusive recognition authority and, if so, how far that power extends.” But after surfing through both history and text, he concludes that, “Albeit limited, the exclusive recognition power is essential to the conduct of Presidential duties. The formal act of recognition is an executive power that Congress may not qualify.” The pattern Kennedy lays out is that the president may choose to check in with Congress, but that by and large, “over the last 100 years, there has been scarcely any debate over the President’s power to recognize foreign states.”
Because Section 214(d) “directly contradicts” the “carefully calibrated and longstanding Executive branch policy of neutrality toward Jerusalem,” the majority then finds it unconstitutional. “If the power over recognition is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s statements.” This is not as much exclusive authority as the president sought in this case. But it’s a lot… (more)
