Will Zivotofsky Be Trumped?

A recent presidential election has changed things re American policy towards Israel, and a recent presidential decision has changed them in a different direction. In other words, Donald J. Trump has shown enthusiasm for moving America’s Israel embassy to Jerusalem, but Barack H. Obama has since allowed a United Nations vote to condemn Israeli settlements in the West Bank. How might the Supreme Court’s controversial and blockbuster 2015 Zivotofsky v. Kerry(in which the present author was one amicus) decision be impacted by these new controversies? (Paul Sracic’s Okay, so what would a Trump presidency be like? also brings up Zivotofsky re Trump, so the present essay is not the only one thinking about these issues.)

In short, Zivotofsky, a thoughtful 6-3 decision authored by Justice Anthony Kennedy, was “procedurally” about separation of powers and who gets to recognize foreign sovereigns (the President, not Congress, said the Court, overruling Section 214(d) of the Foreign Relations Authorization Act of 2003); and it was “substantively” about whether tween Menachem Zivotofsky was allowed to call his Jerusalem birthplace “Israel” on his passport (no, said the Court). Israel, or at least its more Likud-leaning element and that element’s allies in America, was not very happy about this decision. So, could Zivotofsky ever be overturned and put smiles on their faces?

I. Ways to Overturn the Court’s Decisions

There are ways to overtly overturn Supreme Court decisions, and there are subtler ways. An overt overturning would tend to involve the Supreme Court overruling itself; or a constitutional amendment; or perhaps a war (if we see the Civil War as “overturning” Dred Scott). Subtler, de facto overturnings, or partial overturnings, may include, say, executive refusal to enforce a Court decision (as Andrew Jackson quipped), or legislative efforts that limit the efficacy of a Court decision (as with various states’ passing abortion-restrictive laws which arguably limit the power of Roe v. Wade).

II. Zivotofsky May Not Necessarily Be Overturned “Procedurally”

As for Zivotofsky: certain parties interested in supporting Israel’s current government, while once unhappy with Zivotofsky’s being decided against their wishes, aren’t likely to try to overturn the Court’s decision now that there’s a President who wants to move the U.S. Embassy to Jerusalem—which would tend to be a de facto endorsement of plaintiff/petitioner Zivotofsky’s position. In fact, the old position that the plaintiff espoused, that the Congress, not just the President, had a say in recognition decisions, would ironically hurt the plaintiff’s desires now that there is a Republican President, and the only Democrats who could stop his moving the embassy might be Senate Democrats filibustering his attempts to move the embassy. But under Zivotofsky, it’s Trump’s decision, not theirs.

III. Zivotofsky May Not Necessarily Be Overturned “Substantively”, Either

So in the short term, it seems that much of the substantive matter in Zivotofsky, re the status of Jerusalem in U.S. eyes, is decidable by the President-elect, in a way that would “overturn” Zivotofsky. (The present essay assumes that the Zivotofsky Court majority may appreciate the nuances of the Jerusalem situation somewhat more than Trump or many Israeli settlers do, so that the Court majority might feel private discomfiture if Trump now runs roughshod over the nuances in question.) But for how long will an American embassy be in Jerusalem, if it is indeed moved there?

It is likely that Trump, or simulacra of him, may not be President forever. Indeed, a later President may return to the American-foreign-policy status quo since Harry Truman, i.e., that Jerusalem’s status is up to Israelis, and also Palestinians, and perhaps others concerned, rather than being up to one party’s fiat.

The movement of the U.S. Embassy to Jerusalem could cause great rage not only in the Arab world but in the rest of the world as well. And any moves of the Israeli government not just to claim Jerusalem, but also to annex the West Bank, if they feel empowered by Trump’s trumping Truman and abandoning American tradition on the status of Jerusalem, might be condemned in the harshest terms. Some folk around the world might even compare it to Hitler’s Anschluss of Austria in 1938, or his Drang nach Osten (“Drive to the East”) for Lebensraum (“living space”). (Those comparisons would be exaggerated; but the present author would not be surprised if someone made them.)

World outrage would tend to flow towards Israel’s patron, the United States; so over the years, under extreme pressure, America might tend to pull its embassy back to its old Tel Aviv location, at least until Israel and Palestine reach a final, good-faith settlement on Jerusalem. (And even if Trump doesn’t pull it back, a Democratic Congress, if one is elected, can simply refuse to fund it. This is part of Zivotofsky, too: the President recognizes sovereigns, but funding of embassies can be denied by the Legislature, so that separation of powers is preserved.)

Thus, Zivotofsky’s legacy may not be so shaky as some might think it. Defying the whole world, whether on the settlements, or Jerusalem, or annexation, will tend to have its price. And if the Embassy has to be removed from Jerusalem eventually, why move it there in the first place?

IV. Headwinds for Trump and His Confrere Netanyahu

To add further context: one wonders what Trump has been thinking. His pre-election platform seemed somewhat isolationist, and complained about America giving too much foreign aid and getting too entangled in foreign affairs. So Trump wouldn’t seem consistent if he now puts his office and American power and money in support of Israeli expansionism.

His friend Benjamin Netanyahu, prime minister of Israel, appreciates Trump’s ideas on Israel, but not all Israelis do:

Amir Oren, a liberal Israeli commentator, argued that the UN resolution could save the government from itself by bringing closer an end to settlement construction.

“Santa Obama delivered a wonderful Christmas present to Israel when the United States opted not to veto Friday’s United Nations security council vote condemning settlement policy,” he wrote in Haaretz.“The passage of the resolution won’t result in the immediate dismantling of any West Bank settlements, but the world is beginning to come to the rescue and try to save Israel from itself.”

The Guardian, White House races to save Middle East peace process before Trump takes office.

And Netanyahu is apparently realizing the potential weakness of his position:

In contrast to the recent harsh statements, Netanyahu has also reportedly warned ministers to avoid making calls for annexation of the occupied territories for fear of promoting further moves aganist [sic] Israel.

The latest planned reported moves also come amid evidence of a mounting backlash against Netanyahu’s handling of the situation.

On Monday Yesh Atid, the party of one of Netanyahu’s biggest rivals on the right, Yair Lapid, urged the Knesset to summon Netanyahu to explain the “dangerous deterioration in Israel’s foreign relations” following the vote.

Israeli columnists also continued to damn Netanyahu’s handling of the fallout with Ben Caspit, of the Maariv, describing his “campaign of chastisement” as the “most unwarranted and looniest in the world of diplomacy in modern history”.

The Guardian, Netanyahu snubs May over UN settlements vote, Israeli media says.

Conclusion: The Court’s Wisdom May Offer Hope for a Better Future than 2016

The news articles above give evidence that Zivotofsky may leave a long legacy instead of disappearing into the night.

This present essay makes no predictions, though. Maybe Netanyahu, who, in the spirit of George Michael (RIP), has been essentially been saying that Obama “should’ve known better than to cheat a friend” by abstaining on the U.N. vote, will eventually get his way; and the world will grudgingly accept a per se or de facto one-state solution, that one state being Israel. Then again, as Princess Leia (played by Carrie Fisher (RIP), daughter of Debbie Reynolds (RIP)) might say, (the) force of history is likely with the world as a whole, not with isolated figures like Trump and Netanyahu.

2016 has been a miserable year for many people, and we can only hope that sanity and decency prevail, in the Middle East and elsewhere. John Kerry, who defeated petitioner Zivotofsky, has been trying to promote sanity and decency—including “call[ing] for Jerusalem to be the recognized capital of both states”—, at least from his perspective. And if the Court’s Zivotofsky decision, with its appreciation of nuance, history, and multilateralism, points a way to a happy result, then the world may well be happy if that decision and its spirit stand.

(Cross-posted, with edits, at Boyle’s Laws)