Jerusalem passport ruling disappoints, but gently

At first glance, it is easy to lambaste the Supreme Court ruling this week that Jerusalem-born Americans may not designate Israel as their country of birth on their passports.

After all, Jerusalem is the capital of Israel, the seat of its government and the soul of its people. To deny this is to tread on the quicksand of Israel delegitimization.

Mainstream Jewish organizations were quick to criticize the Supreme Court’s 6-3 decision to nullify a 2002 act of Congress permitting Americans born in Jerusalem to claim Israel as their birthplace. Groups that expressed their disappointment included the Conference of Presidents of Major American Jewish Organizations, AIPAC, the Anti-Defamation League, the American Jewish Committee, the Zionist Organization of America, and Reform, Conservative and Orthodox organizations.

Upon closer inspection, this ruling, while disappointing, makes sense given the complex geopolitics and the Supreme Court’s understanding of the separation of powers as outlined in the Constitution.

The ruling was not about the court delegitimizing Israel. It was about maintaining the existing ambiguity over the roles of Congress and the executive branch in determining foreign policy.

Every elementary school civics class unpacks the constitutional powers divided among the three branches of government. When it comes to foreign affairs, the legislative branch declares war; the executive branch negotiates international agreements.

But real life does not always play out in so neat and orderly a fashion. The power struggle between the executive branch and Congress goes back to the earliest days of the republic.

This week, the court ruled for the president, who in this case sought to maintain the United States’ longstanding refusal to acknowledge Jerusalem as Israel’s capital. Next time, the court may rule for Congress.

The use of Jerusalem as a domestic political football has its own storied history. Usually around election time, candidates make pandering pronouncements about moving the U.S. Embassy from Tel Aviv to Jerusalem. After the votes are counted, it never happens.

That’s because the United States, though Israel’s stalwart ally, has found it more expedient to maintain the status quo vis-a-vis Jerusalem until a final peace settlement is reached. Proclaiming Jerusalem as Israel’s capital, rightly or wrongly, would set off a political earthquake this or any administration would prefer to avoid.

When viewed through that lens, we have to agree with Marc Stern, the AJC’s general counsel, who called the ruling “a defeat, but a limited defeat.”