The U.S. Supreme Court Wisely Upholds the Law

The Supreme Court’s recent decision could prove consequential in the years ahead, as the political battle between Israelis and Palestinians continues to find its way into American courts.

One of the great battles that has been taking place within the United States in recent years has seen two separate issues meshed into a single confrontation: One is the powers of the Congress vs. the powers of the president in foreign policy decisions, and the second is whether the United States should stand squarely behind Israel in the Palestinian-Israeli conflict or pay the role of an impartial mediator that seeks a negotiated peace based on international law that meets the security interests of both sides.

Other new dimensions to this many-faceted tug-of-war have also materialized in recent years. One is the use of American courts as a venue in which to wage new battles in this long-running war. Cases now before federal district and appeals courts include accusations by pro-Israeli groups and families that the Palestinian Authority and the Arab Bank are liable for having aided Hamas and other “terrorists” whose acts resulted in the deaths of American citizens who also hold dual Israeli nationality.

Another is the use of American trade and commerce laws to punish European countries whose governments institute regulations that distinguish between exports from Israel within its 1967 border and from settlements built on occupied Palestinian land, with the aim of discouraging or prohibiting exports that exploit occupied Arab lands and resources—as international law requires.

A third is the growing controversy over events about Israel-Palestine on American university campuses, including attempts to divest from university investments in companies that benefit from the Israeli occupation, prohibit public events that are openly critical of the Israeli occupation, and moves to fire or not hire professors who criticize Israeli actions (like the savage war on Gaza last year) in their private lives via social media, for example.

These and other confrontations see pro-Israel and pro-Palestine forces waging intense battles inside American institutions that have nothing to do with foreign policy in their normal functions. Most Americans do not follow these developments, and have few if any strong feelings about the issues raised. Polling evidence for many years suggests that the American public clearly supports the security of Israel, but also wants to remain as even-handed as possible in the Palestine-Israeli conflict and wants to uphold the rule of law and UN resolutions.

So it was fascinating Monday to hear the United States Supreme Court decision in response to a lawsuit by an American-Israeli couple that wanted the U.S. State Department to issue a passport for their son, who was born in Jerusalem, that named his place of birth as Israel. The American Congress had passed a law in 2002 during the George W. Bush presidency making this option available to those Americans who requested it. The Supreme Court rejected the law and the lawsuit by a 6-3 vote, saying that foreign policy issues such as United States’ view of the status of Jerusalem must be decided by the president, and not Congress.

The majority ruling noted that the nation must speak with a single voice on foreign policy issues and on which foreign governments the U.S. views as legitimate or not, and “that voice must be the president’s.”

This is perhaps significant beyond the narrow issue of what is written on a newborn child’s passport, because the balance of power between the president and Congress has emerged recently as a major venue of action for both the government of Israel and pro-Israeli American forces that seek to orient American foreign policy heavily, if not totally, in line with Israeli priorities. Examples of this were the speech by Israeli Prime Minister Benjamin Netanyahu before Congress earlier this spring in an attempt to scuttle President Barack Obama’s nuclear negotiations with Iran, and the 100-0 vote in the U.S. Senate last year to fully support Israel’s actions during the Gaza war.

The law on passports was another move by pro-Israeli forces in Congress to use American law and unilateral political decisions to determine the outcome of issues that are being negotiated between Israel and Palestine, such as the status of Jerusalem. The Obama administration lawyers argued before the court that it has been the executive branch’s policy since the 1950s, “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.”

The Supreme Court is the highest authority in the American land, and its decision could prove consequential in the months and years ahead, as the political battle between Israelis and Palestinians continues to find its way into American courts. Its decision would seem to support the view held by recent presidents that international law that underpins bilateral negotiations is the way to define the status of the contested city of Jerusalem. 

Rami G. Khouri is published twice weekly in the Daily Star. He was founding director and now senior policy fellow of the Issam Fares Institute for Public Policy and International Affairs at the American University of Beirut. On Twitter: @ramikhouri.

Copyright ©2015 Rami G. Khouri—distributed by Agence Global