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The Zivotofsky Case And U.S. Foreign Policy

The Supreme Court has yet to deliver a final word on whether American citizens born in Jerusalem can have their passports list “Israel” as their place of birth if they so choose. Last week, however, the U.S. Court of Appeals for the District of Columbia Circuit, in the case of Benjamin Zivotofsky, invalidated a federal law authorizing such recordation on the grounds that the president has exclusive power to conduct the foreign affairs of the United States.

The Zivotofskys’ lawyer, noted constitutional litigator Nathan Lewin, has said he will pursue a decision from the Supreme Court. In the meantime, we think a short exploration of who controls U.S. foreign policy is in order.

Since the beginning of the republic, Congress has had a constitutional role to play in the area of foreign affairs and it has done so over the years. (This is not to even consider the plausible argument that the authorization by Congress of a particular listing on a passport by an American citizen is hardly involvement in the foreign affairs of the nation.)

As every school child should know, the Constitution grants Congress the “power of the purse” – that is, it is the congressional role to determine how, when and if to fund presidential initiatives. Also, while the Constitution dubs the president the “commander in chief,” it also specifically grants to Congress the general power to declare war and to raise and support the armed forces.

Two prominent examples of how this has played out are the Neutrality Acts of the 1930s and the end of the Vietnam War.

The U.S. Neutrality Acts forbade arms sales to belligerent nations except on a “cash and carry” basis. Yet prior to the U.S. entering World War II, the British were running low on money in their fight against Hitler. President Roosevelt wanted to provide weapons to Britain and indeed had called for America to become the “Arsenal of Democracy.” Isolationist lawmakers, however, insisted on strict adherence to the neutrality laws they had pushed through Congress. So Mr. Roosevelt came up with the idea of “lend-lease.” A law containing certain compromises the president had to make to accommodate the isolationists was enacted in 1941. That law permitted the president to “sell, transfer title to, exchange, lease, lend or otherwise dispose of, to any such government [whose defense the president deems vital to the defense of the United States] any defense article.”

One can hardly think of a more profound expression of congressional power in the area of American foreign policy than its principal role in the lend-lease episode – first in the reach of the neutrality laws and then the Lend Lease law itself, which affected the course of World War II, world history and more particularly America’s role in the international arena.

Similarly, the fractious war in Vietnam, one of the most debated foreign policy issues in American history, came to an end when Congress simply refused to continue funding it. More recently, in connection with American military actions in the Middle East, the War Powers Act has continued to loom large in terms of congressional restraints on presidential action.

There are many more examples that could be cited. The point is that the idea of foreign affairs being the exclusive prerogative of the president is one of those misleading myths about the American way of government. And if that’s the case even when it comes to declaring and conducting wars, it is surely so when Congressional action may be indirectly politically supportive of a U.S. ally.

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