Photo Credit:
Menachem Zivotofsky sued the U.S. government because the U.S. refused to include "Israel" alongside "Jerusalem" as the place of his birth on his passport. So far the courts have sided with the government.

In 2002, George W. Bush signed into law the Foreign Relations Authorization Act, which to Israel should have meant the fulfillment of a long-desired goal: official recognition of Jerusalem as Israel’s capital by its closest ally, the U.S. The act would demonstrate this recognition by changing the venue of the U.S. Embassy from Tel Aviv to Jerusalem, and by allowing Israeli-Americans born in Jerusalem, the right to list their country of birth as “Israel”

Alas, Bush signed the act into law with a signing statement that nullified that recognition: “U.S. policy regarding Jerusalem has not changed,” and section 214 “would, if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”

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It was this controversial signing statement that was the basis of the recent Supreme Court ruling in Zivotofsky vs. Kerry. The ruling says that the official stance of the U.S. government regarding the status of Jerusalem is that put forth by the Executive Branch alone. And that stance echoes the signing signature of the aforementioned act, a caveat that rendered section 214 invalid. The stance of the President is to take no stance at all.

Over the years, presidents have made two conflicting statements regarding Jerusalem. The first statement says that Jerusalem will never be divided, while the second statement says that the status of the city is as yet undetermined.

If Jerusalem will never be divided, then its status is already determined, with no further negotiating ado. This would make Jerusalem the eternal capital of Israel for all its citizens. It follows that if Jerusalem is the indivisible capital of Israel, the U.S. Embassy should be based in Jerusalem (and not in Tel Aviv). It would also follow that Israeli Americans born in Jerusalem would by right have their birth country listed in their passports as “Israel.”

If, on the other hand, the status of Jerusalem is undetermined, how is it possible to say that the city will never be divided? With all options laid out on the table, wouldn’t one (or several) of those options involve dividing the city of Jerusalem between an Arab state and a Jewish state? If one is open to negotiations, all outcomes would seem to be possible, including the division of the city.

And so, these two ideas—that Jerusalem will never be divided but that its status remains undetermined—cancel each other out, resulting in a big, fat, zero. This situation, the seeming disingenuousness of American support for the Jewish state causes great angst to Israeli-Americans who sense that America speaks with a forked tongue when it comes to its closest ally, Israel. The notion that the U.S. has the ultimate power over the recognition or non-recognition of Israel’s capital feels like paternalistic Big Brothering. It’s as if the U.S. is saying that Israel has no right to declare or designate its own sovereign territory as its capital. Israelis might reasonably ask: is this how friends treat friends?

Moreover, to the holders of these stateless passports, it’s a kick in the pants. It’s an ally embracing the enemy’s non-recognition of the Jewish State. It’s America saying that Israel doesn’t have the final word over what it believes to be sovereign Israeli territory. It’s a blow to Israel’s credibility. In this light, section 214 of the 2002 Foreign Relations Authorization Act evolves as cover for America’s non-recognition of Israel. With that signing signature, President Bush made a law as follows: The President can say one thing and do another when it comes to Israel, and no one can do a thing about it. Certainly not Congress.

Fast forward to the recent decision by the Supreme Court and the 2002 Foreign Relations Authorization Act that held so much promise for Israel thus becomes a bitter pill to swallow. George W. Bush’s signing statement is now the lawful vehicle for America’s double-crossing, non-recognition of Israel.

Amy Howe notes: “Congress should not be allowed to interfere with that power, the majority continued, because it would impede the president’s ability to speak with one voice in deciding whether to recognize a particular country.”

That would be all well and good were the President to speak with one voice in deciding whether or not to recognize Jerusalem as the undivided capital of Israel. He has, unfortunately, issued two contradictory statements on this subject.

In 2008, President Obama said, in his address to AIPAC, “Jerusalem will remain the capital of Israel, and it must remain undivided.”

In 2012, the President went back on that statement by way of an exchange between Matt Lee and Victoria Nuland, during the Department of State’s daily press briefing:

Q: Yesterday there was a bit of a kerfuffle over an announcement that was made by the department about the travel of your boss.
Is it the State Department’s position that Jerusalem is not part of Israel?

VICTORIA NULAND, STATE DEPT. SPOKESWOMAN: Well, you know that our position on Jerusalem has not changed. The first media note was issued in error, without appropriate clearances. We reissued the note to make clear that undersecretary, acting undersecretary for—our—Kathy Stephens will be traveling to Algiers, Doha, Amman, Tel Aviv, and Jerusalem. With regard to our Jerusalem policy, it’s a permanent-status issue. It’s got to be resolved through the negotiations between the parties.

Q: Is it the view of the—of the United States that Jerusalem is the capital of Israel, notwithstanding the question about the embassy—the location of the U.S. embassy?

MS. NULAND: We are not going to prejudge the outcome of those negotiations, including the final status of Jerusalem.

Q: Does that—does that mean that you do not regard Jerusalem as the capital of Israel?

MS. NULAND: Jerusalem is a permanent-status issue. It’s got to be resolved through negotiations.

Q: That seems to suggest that you do not regard Jerusalem as the capital of Israel. Is that correct or not?

MS. NULAND: I have just spoken to this issue –

Q: (Inaudible.)

MS. NULAND: — and I have nothing further to say on it.

Q: You’ve spoken to the issue –

MS. NULAND: Yeah.

Q: — but (haven’t answered ?) the question. And I think there’s a lot of people out there who are interested in hearing a real answer and not saying—and not trying to duck and say that this has got to be resolved by negotiations between the two sides.

MS. NULAND: That is our –

Q: What is the capital of Israel?

MS. NULAND: Our policy with regard to Jerusalem is that it has to be solved through negotiations. That’s all I have to say on this issue.

Q: What is the capital of Israel according –

MS. NULAND: Our embassy, as you know, is located in Tel Aviv.

Q: So does that mean you regard Tel Aviv as the capital of Israel?

MS. NULAND: The issue on Jerusalem has to be settled through negotiations.

The President’s voice is not one voice; rather it is two voices that cancel each other out. Jerusalem will remain undivided but maybe it won’t (pending negotiations). This makes it difficult to understand the majority opinion in Zivotofsky vs. Kerry, which backs a controversial signing statement by George W. Bush in order to offer President Obama a unified voice.

President Obama instead abuses his power to speak with two contradictory voices. As such, whether Congress impedes or supports the President’s ability to speak in one voice is immaterial: the President does not and will not make a clear and unequivocal statement regarding the status of Jerusalem.

Why then, is protecting his power to speak in one clear voice, a value worthy of the court’s time and attention? One might reasonably suggest that the relationship between Israel and America proves U.S. recognition of Israel’s right to designate its own capital. But this is a smokescreen. In stating that the status of Jerusalem is to be determined through negotiations, the President instead gives recognition to a non-existent state (Palestine), while calling into question the status of the Jewish state (Israel), a real and current entity and ally of the United States.

The more one teases apart the tendrils of the U.S.-Israel relationship, the more it seems to be founded on air at its core. President Bush invalidates an act of Congress with a controversial signing signature and the (liberal-leaning) Supreme Court uses that signing statement to cede power to President Obama. President Obama uses this power to curry favor with a non-existent state at war with America’s ally, Israel.

Meantime, the new ruling gives Congress leeway in its dealings in foreign affairs with every country except for Israel. The U.S. Congress may, according to the Court, “. . . express its disagreement with the President in myriad ways.  For example, it may enact an embargo, decline to confirm an ambassador, or even declare war.”

Here, Howe brings in President Obama’s expressed intention to normalize relations with Cuba. Senator Marco Rubio responded that he would block confirmation of an ambassador and funding for a Havana-based U.S. embassy. Congress has a way to fight back.

But can Congress express its disagreement with the President regarding Israel? No such luck. Congress has no recourse here. SCOTUS ruled that only the President can decide the status of Jerusalem from moment to moment (and seemingly he does, saying one thing one moment and canceling it out the next).

This is not just an Obama problem, but a problem with the way America has related to Israel in general, since the birth of the Jewish State. It’s not just non-recognition of Jerusalem as Israel’s chosen capital; it is the non-recognition of the rights of Israeli-Americans to say where they were born. Chief Justice John Roberts, in his dissent, said the Court’s decision was, “a first:  Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.”

Furthermore, says Roberts, the issue here has nothing to do with recognition, but “simply gives an American citizen born in Jerusalem the option to designate his place of birth as Israel” in his passport.

In summary, despite the Court’s decision, the President’s divided stance on Jerusalem is at odds with the concept of a unified American voice. If Israel is a U.S. ally, shouldn’t recognition of its designated capitol be presupposed? Isn’t it undiplomatic, a slap in the face, to say otherwise? Does this President’s stance not, at the very least, present a divided voice on the issue, a fortiori?

Right now, there is no Palestine. Thus, it has no capital. There is, on the other hand, a State of Israel, a U.S. ally, whose self-proclaimed capital is Jerusalem. It would be one thing to say that as of now Jerusalem is the capital of Israel, but that this can later be negotiated. As it stands however, the President is essentially saying he does not recognize the State of Israel’s right to self-determination, but does recognize the rights of a state that does not yet exist. And the courts have backed him on this, essentially pulling out the diplomatic rug from under Israel’s feet.

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Blogger and mother of 12, Varda Meyers Epstein is a third-generation Pittsburgher who made aliyah at age 18 and never looked back. A proud settler who lives in the biblical Judean heartland, Varda serves as the communications writer for the nonprofit car donation program Kars4Kids, a Guidestar Gold medal charity. The author's political opinions are her own and not endorsed by her employer.

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