The question of how the birth of Menachem Zivotofsky should be registered, which was decided by a federal court in Washington on July 23, was not political. Anyone needing proof of that should only look back to the ruling of the US Supreme Court from March 26 of last year. If the Supreme Court believed that it was a political decision, it would have prevented the federal court from deciding the case. But the Supreme Court decided by an 8-1 majority that the decision was not political, but legal.
It was simply an administrative battle over who wields authority, and in this battle — and this battle alone — the US administration defeated the US Congress. It should also be noted that this was just a temporary victory. The case is headed back to the Supreme Court for further deliberation. In the meanwhile, however, it is clear that in a struggle that began a decade ago, the administration does have the authority to determine that the Zivotofsky child’s place of birth may well have been “Jerusalem,” but it was not necessarily “Israel.”
Here is a summary for anyone unfamiliar with the intricacies of this case. An American child was born in Jerusalem, and his parents asked that his passport read, “Jerusalem, Israel.” The US State Department refused. Its reasoning was that the United States has yet to decide whether to recognize Jerusalem as the capital of Israel. As evidence of this, consider the fact that its embassy is located in Tel Aviv. Furthermore, see Menachem Zivotofsky’s passport. His parents went to court, basing their claim on a law that was passed by Congress — a law stating explicitly that Jerusalem is the capital of Israel, which would obligate the administration to list the boy’s birthplace accordingly. This would have been a potent argument, if Congress had had the authority to pass such a law. But neither former President George W. Bush, nor his successor, President Barack Obama, recognized such congressional authority. Nor did the Supreme Court justices. Last week, the federal court decided that both presidents were right, and that Congress was mistaken. There is no difference whether the issue is about Jerusalem, Israel, Abuja, Nigeria or Kuala Lumpur, Malaysia — the administration decides what appears in passports.
Obviously, one might wonder why the administration is still so reluctant to recognize Jerusalem as the capital of Israel today. One might even find the answer a tad disappointing. The administration does not recognize Jerusalem as the capital of Israel because this will cause a commotion and sabotage efforts to get Israel and the Palestinians to talk. In other words, the question that the administration is asking is not “Why not?” but “Why yes?” Since there is no compelling reason to change the policy, it will not be changed, unless the Supreme Court decides that it is Congress that wields that particular authority and not the administration.
In fact, it will be interesting to see what happens in Congress if there is such a ruling. After all, it is no coincidence that Congress passes laws like the one pertaining to Jerusalem without the slightest hesitation. Among the many reasons why it passes these laws is that Congress is not responsible for foreign policy, so it is easy for it to ignore the negative consequences that might result from a change. It passes these laws in the same way that presidential candidates are quick to declare before they are elected that they plan to change the status of Jerusalem once they enter office, but then change their minds immediately upon election. That’s what happened to George W. Bush, for instance. In the case of most of the Republican candidates in the 2012 elections, there was no need to put their promises to the test, simply because they weren’t elected.
Congress fulfills the will of the people, and the American people support Israel’s right to Jerusalem. Even the American Jewish public supports Israel's sovereignty over Jerusalem, despite its dovish, left-leaning attitudes regarding other aspects of the Palestinian-Israeli conflict. Polls taken among US Jews indicate that even if they are prepared to make many concessions in Israel’s name, they are unwilling to compromise on Jerusalem. Jerusalem is Israel’s strongest card with American public opinion. Late PLO leader Yasser Arafat’s famous refusal to recognize the historic ties of the Jewish people to the Temple Mount was and remains one of the low points of the Palestinian advocacy campaign when it comes to proposing a solution to the conflict.
However, the court’s ruling removed responsibility for the question of Jerusalem from the American public and left it in the hands of the administration. This is an administration that is committed to the peace talks, committed to the peace process and committed to presenting itself as a fair intermediary. It is an administration that believes it would be irresponsible for it to decide “for the parties” where their future capital will be located once the conflict is over. It is certainly reasonable to regret this decision, but it could have been worse. Besides, had the administration been forced to grit its teeth and inscribe “Israel” in Zivotofsky’s passport, there would still have been no significant change to Israel’s diplomatic status.
Israel should learn a lesson from this interminable legal episode. American policy is not always uniform, clear and decisive. Not every "for" decision by Congress is cause for celebration, and not every condemnation by the administration is cause for mourning. Not every poll that shows “unprecedented” support is license to go wild, and not every sign that the White House is uncomfortable is cause for panic. American policy toward Israel is a battlefield, with little victories and minor defeats, obstacles and achievements. The United States supports Israel. That is the basis for everything, but the details of that support are re-clarified from one week to the next, from one month to the next and from one administration to the next.
Anyone on the right who celebrated George W. Bush’s letter to former prime minister Ariel Sharon may well have been disappointed later by the summation of the Annapolis Conference in November 2007. Anyone on the left who celebrated the freeze on settlement construction during Obama’s first term may well have been disappointed later by Obama’s refusal to continue pressuring for a freeze on settlements during his second term. And yes, anyone who celebrated the court’s ruling last week could yet find that it was premature, and that the decision could still change, just as anyone who celebrated the Zivotofsky family’s victory at the Supreme Court a year ago [for the court to hear the case] has learned only now that that was premature, too. Regardless, the question of Jerusalem’s status will not be determined in the courts, nor in the corridors of the US State Department. The decision will be made in the exact same way that all other momentous decisions are made: through determination and guile, or in brief, through politics.
Shmuel Rosner is a Tel Aviv-based columnist, editor and think-tank fellow. He is the senior political editor for the Jewish Journal and writes the daily blog "Rosner's Domain." He writes weekly for The International Herald Tribune and The New York Times. On Twitter: @rosnersdomain