Monday, June 8, 2015


The opinion is narrow. The narrow holding is the President has absolute and exclusive power to recognize a foreign state.  The case is about an American citizen born in Jerusalem who wants Israel listed as his place of birth on his passport.  The US has a policy that until the Israeli Palestinian question is solved, it will not allow people born in Jerusalem to list Israel as their place of birth.  This is a long standing policy of the US over many Administrations.

Congress passed a law to override Executive Policy on this issue.  The Supreme Court in a 6/3 decision found Congress had no such authority to override Executive Policy concerning the recognition of a foreign state or its boundaries.

Click for Opinion

On pages 18 and 29 there is interesting language from the majority which is even clearer in the dissent that the President cannot just ignore valid laws by Congress which relate to foreign policy.

This is interesting because it goes to Obama's Immigration Enforcement Order.  This may not bode well for the Obama Administration.  This comes off a possible Thursday victory from the panel which will hear Judge Hanen's Immigration ruling noting that they were not bound by any opinion written by the panel which denied the interim stay of Judge Hanen's order.

The quirk in this case is - can Congress regulate Executive discretion in enforcement of laws?  It's kind of muddy.  I think the Court will say the Executive Branch on law enforcement has discretion, but in terms of providing the undocumented immigrants with benefits the Executive Branch cannot grant any benefits.


Nothing at this time prevents President Obama from diplomatically recognizing Cuba.  The problem is Congress still controls the purse strings and can refuse to fund the embassy and confirm an ambassador.  I think the corporatists will force the Republicans on this one.  On funding that is silly - they already fund the US Interest Section in Havana. It is already staffed. 


An interesting footnote is the three Jewish Justices Ginsburg, Breyer and Kagan, where part of the majority agreeing only the President can recognize Jerusalem as part of Israel. To be fair Breyer was a soft concurrence saying the case was a political question the Court was better off not getting involved in.  - But he nonetheless concurred.

The dissent standing up for Congress and in effect Israel were conservative Christians.

I like this because its shows the members of the Court were able to put aside their personal religious preferences for what they believe to be the law. 

It has a lot of history concerning the exclusive Power of the President to recognize foreign states and their boundaries.   The opinion is rather short for a Supreme Court opinion.  Anyone interested in history will enjoy the opinion, regardless of how you feel about the result.

1 comment:

Anonymous said...

Thank you for pointing out this interesting and very pertinent case.