Jerusalem is once again the subject of U.S. Supreme Court consideration.

In January of 1950:

By a vote of 60-2 with members of Mapam and Herut abstaining, the Knesset adopts a proclamation declaring Jerusalem the capital of the State of Israel. In December 1949, the cabinet had drafted the resolution following a compromise between those who wanted an official legislative act declaring the city as capital of the country and those who felt that such an action was unnecessary. 

After the recapture in 1967 of the portions of Jerusalem that had been under illegal occupation by Jordan, the government hemmed and hawed over whether any further legislative action was needed, but in 1980 passed a law declaring that "Jerusalem, complete and united, is the capital of Israel". 

Nevertheless, except for a couple of small nations, no country in the world has yet recognized the Jewish State’s traditional and proclaimed capital. The United States, for example, refuses to accept Jerusalem as the capital and keeps its embassy in Tel Aviv.

This is despite numerous Acts of Congress, most of them bipartisanly unanimous, directing the Department of State to relocate our embassy to Jerusalem and recognize that city as the capital of Israel. These instructions have been uniformly ignored by president after president, including most recently George W. Bush and Barack Obama.

All the same, Obama has made it a point on several occasions to state clearly that he insists that Jerusalem “must remain” the capital of Israel, and that it “must remain undivided.” That turned out to be just campaign pandering to American Jewish groups.

As a matter of practicality, although Jerusalem is and should be Israel’s capital, Congress can pass acts and resolutions until it’s blue in the face; and the Executive Branch has no need to follow them, as foreign relations fall under the White House’s purview.

The present Supreme Court case, however, is not about whether or not Jerusalem is Israel’s capital; it is about whether Jerusalem is in the State of Israel at all.

In 2002, Congress passed a law that permitted the State Department to list Israel as the place of birth for Americans born in Jerusalem. When President Bush signed the bill into law, however, he made clear he viewed it as advisory, since a mandate would infringe on the president’s authority on foreign relations.

As a result, his administration – along with President Obama’s – declined to move forward with the suggestion. Since both Israelis and Palestinians claim the city as their own, the US has refused to recognize any country’s sovereignty over Jerusalem in the absence of a negotiated deal between the two parties. Current US policy is to list Jerusalem as a place of birth but to exclude the country name.

The case at hand is that of a young man, an American citizen, who was born in Jerusalem and wants the U.S. State Department to note in his passport that Israel was his place of birth, something which they have steadfastly refused to do, listing his birthplace simply as Jerusalem, as if that city exists in some sort of geographical limbo, and as if that city nor any part of it lies within the State of Israel and is instead some kind of fictional “international city.”

This is a particularly tough case for SCOTUS, although I think the basic issue is clear. The days of “international cities” such as Danzig or Trieste, are long gone. If Jerusalem is not in Israel, then, indeed, where is it? If it’s not in Israel, then how can that country have its seat of government outside itself any more than the United State would locate its capital someplace in Mexico or Canada?

In my book, the Executive Branch is all in the wrong morally and practically. Bush ought to have and Obama should fully recognize Jerusalem as being a part of Israel and being its capital. Obama was quick enough to accept the annexation of Crimea by Russia; why can he not turn his campaign lies into action by accepting the annexation of the recaptured parts of Jerusalem to re-create Jerusalem as the undivided capital of Israel, as it had been for so many centuries.

But the Supreme Court is not being asked to do what is right. It is being asked to do what is legal under our Constitution. Technically, Congress has no authority (other than the powers of war and appropriations) to dictate the conduct of foreign relations; and campaign promises are hardly enforceable. Yet, the Court has been known to bend the Constitution when it suits its purpose – as when a majority managed to turn a “penalty” into a “tax” in the ACA case.

A strict constitutional interpretation would have the Congress unable to direct the Executive in this area. A president who wasn’t busy shoving Israel under his favorite bus would be having his State Department do the right thing by moving our embassy to Jerusalem, recognizing it as the capital, and noting in Jerusalem-born Americans’ passports that they were, indeed, born in Israel.